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THE 


CONSTITUTIONS OF OHIO 

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1802 AND 1851, 


WITH 


NOTES OF THE DECISIONS CONSTRUING THEM, AND REFERENCES 
TO THE CONSTITUTIONAL DEBATES. 


BY 

GEORGE B. OKEY AND JOHN H. MORTON. 


COLUMBUS: 

NEYINS AND MYERS, BOOK PRINTERS. 

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PREFACE. 


This edition of the organic laws of Ohio, the Constitution of 1802 and 
that of 1851, has been prepared with much labor and pains-taking care. 
Its preparation was begun nearly three years ago, in anticipation of the 
Convention now in session, which is called to “ revise, alter or amend” 
the present Constitution ; and during the period that has elapsed since 
the work was undertaken, we have devoted as much time to it as atten- 
tion to our other duties would permit. We found it necessary, as we 
proceeded with the work, small as the volume is, to critically examine 
more than sixty volumes of reports. Our labor has consisted mainly in 
selecting from the cases decided in the Courts of this State the substance 
of the decisions, showing the construction which has been placed on the 
various provisions of both Constitutions, and where pertinent, extracts 
from the opinions have been made ; in appending to each section of the 
Constitution references to the debates in the Convention of 1850-1 ; and 
in adding to the whole thorough analytic indexes. These have been 
made so full that a person of ordinary intelligence can readily find any 
provision of either instrument that he may wish to examine, and see 
also, at the same place, the construction which has been placed upon it 
by our Courts. Great care has been taken to present the text in as per- 
fect a form as possible, and as to the notes and indexes the same care has 
been observed. 

We are of opinion that an edition in a permanent form, interleaved, 
would be found useful in the Convention, and that has been a leading 
object in our present undertaking; and moreover, the State authorities 
desire a number of bound copies for the use of the State officers and for 
exchange with other States and Territories. We trust that the whole 
will be found in such convenient form as to meet the reasonable demands, 
not only of the members of the Convention, the bar of the State, but of 
all others who may desire to consult the provisions of our organic laws 
or study the constitutional history of Ohio. 

Cincinnati, July, 1873. 



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CONSTITUTION OF OHIO. 


ADOPTED, 1802. 


We, the people of the eastern division of the territory of 
the United States, north-west of the river Ohio, having the 
right of admission into the general government, as a mem- 
ber of the Union, consistent with the constitution of the 
United States, the ordinance of congress of one thousand 
seven hundred and eighty-seven, and of the law of congress, 
entitled “ An act to enable the people of the eastern division 
of the territory of the United States, north-west of the river 
Ohio, to form a constitution and state government, and for 
the admission of such state into the Union, on an equal foot- 
ing with the original states, and for other purposes in 
order to establish justice, promote the welfare and secure 
the blessings of liberty to ourselves and our posterity, do 
ordain and establish the following Constitution or form of 
government ; and do mutually agree with each other to form 
ourselves into a free and independent state, by the name of 
the State of Ohio. 


ARTICLE I. 

OF THE LEGISLATIVE POWER. 

Section 1. The legislative authority (1) of this state 
shall be vested in a General Assembly, which shall consist 
of a senate and house of representatives, both to be elected 
by the people. ( See Const. 1851, Art. II, § 1.) 

(1.) It is the right of the Legislature to enact laws, and the province 
of the court to construe them. The Legislature has no power to enact 
a law declaring what construction or decision the court shall make 
upon acts under which rights and liabilities have already been acquired 
or incurred. Where the court has put a construction on an act, that 
construction is binding upon all existing cases. The explanatory act 
operates prospectively, and has from the time of its passage the force 
and effect of a law. Where such explanatory act assumes to give con- 
struction to existing acts, and to govern the decision of the court as to 
eases pending, it is judicial; and as the Constitution confers judicial 
power upon the courts, and withholds it from the Legislature, to that 
extent such act will be inoperative. As a law, such an act will be 
enforced; as a construction of previous acts, under which cases are 
already pending in the courts, it will be held void. Schooner Aurora 
Borealis v. Dohbie, 17 Ohio, 125-127— Read, J. ; Steamboat Messenger v. 
Pressler, 13 Ohio St., 255-260. 

Divorces are the subject of judicial, not legislative action, and the 


Preamble. 


In whom 
legislative 
power 
vested. 


1 


CONSTITUTION OF OHIO, 1802. 


Constitution confers upon the Legislature no power to grant them ; but 
to avoid the consequences which would result from declaring all those 
void which have been granted by the Legislature during the existence 
of the state, rendering illegitimate the issue of second marriages, the 
court will pronounce them valid. Bingham v. Miller , 17 Ohio, 445. 

The Legislature can not disturb existing contracts nor unsettle rights 
that have already become vested. Smith v. Parsons, 1 Ohio, 236 ; Bank 
of Utica v. Card, 7 Ohio, 2 pt. 170. 

The Legislature has a right to change, modify, enlarge or restrain 
public corporations, which exist only for public purposes, as counties, 
cities and towns. Marietta v. Fearing, 4 Ohio, 427. 

A citizen has no vested right in the forms of administering justice 
that precludes the Legislature from modifying or altering them at its 
pleasure. Hays v. Armstrong, 7 Ohio, 1 pt. 247. 

The General Assembly, like the other departments of government, 
exercises only delegated authority ; and any act passed by it, not falling 
fairly within the scope of “ legislative authority,” is as clearly void as 
though expressly prohibited. C. W. & Z. B. Co. v. Clinton Co., 1 Ohio 
St., 77. 

The power of the General Assembly to pass laws cannot be delegated 
by them to any other body, or to the people. Ib. 

The act of March 1, 1851, to authorize the commissioners of said 
county to subscribe to the capital stock of the relator, does not 
delegate legislative power, or contravene this Constitution, in providing 
that the subscription shall not be made until the assent of a majority 
of the electors of the county (except two townships) is first obtained 
at an election held for that purpose, lb. 

It was competent for the Legislature, under this Constitution, to con- 
struct works of internal improvement on behalf of the state, or to aid 
in their construction by subscribing to the capital stock of corporations 
created for that purpose, and to levy taxes to raise the means ; and by 
an exercise of the same power, to authorize a county to subscribe to a 
work of that character running through or into such county, and to 
levy a tax to pay the subscription. Such a tax, when thus authorized, 
is not beyond the legitimate sgope of local municipal taxation : nor is 
it opposed to Article VIII, Section 4, of this Constitution, declaring 
that “private property ought and shall eyer be held inviolate, but 
always subservient to the public welfare, provided a compensation in 
money be made to the owner.” The taxing power for such purposes, 
under this instrument, Tvas an undeniable legislative function, to bo 
exercised at the discretion of the General Assembly, and subject to no 
limitation but that against poll taxes ; and while this Court is unani- 
mous in the opinion that such laws involve a gross abuse of that power, 
it possesses no authority to control that discretion, or to correct such 
abuses by the exercise of a veto power on such legislation. Ib. 

So an act of the General Assembly, authorizing the trustees of a 
township through which a railroad was to be made, to subscribe on 
behalf of the township to the capital stock of the railroad company, 
is'not in conflict with this Constitution, Steubenville and I. B. Co. v. North 
Tp., 1 Ohio St., 105. 














CONSTITUTION OF OHIO, 1802. 


5 


The provisions in the charter of the “ Lake and Trumbull Plankroad 
Company,” passed February 14, 1849, by which the trustees of certain 
townships are respectively authorized to subscribe to the capital stock 
of said company, if a majority of the qualified electors of the town- 
ships respectively assent thereto, is not in contravention with this in- 
strument. Loomis v. Spencer , 1 Ohio St., 153. 

A discriminating assessment for the improvement of streets, laid 
upon grounds immediately benefited in proportion to such benefit, was 
a legitimate exercise of the taxing power under this Constitution. 
Scovill v. Cleveland , 1 Ohio St., 120. 

The power of taxation being a sovereign power, can only be exercised 
by the General Assembly, when, and as conferred, by the Constitution ; 
and by municipal corporations only when unequivocally delegated to 
them by the legislative body. Mays- v. Cincinnati, 1 Ohio St., 268. 


Section 2. Within one year after the first meeting of the 
general assembly, and within every subsequent term of 
four years, an enumeration of all the white male inhabit- 
ants above twenty-one years of age shall be made in such 
manner as shall be directed by law. The number of repre- 
sentatives shall, at the several periods of making such 
enumeration, be fixed by the legislature and apportioned 
among the several counties, according to the number of 
white male inhabitants above twenty-one years of age in 
each, and shall never be less than twenty-four, nor greater 
than thirty- six, until the number of white male inhabit- 
ants, above twenty-one years of age, shall be twenty-two 
thousand ; and after that event, at such ratio that the whole 
number of representatives shall never be less than thirty- 
six, nor exceed seventy-two. ( See Const. 1851, Art. XI.) 

Sec. 3. The representatives shall be chosen annually, 
by the citizens of each county respectively, on the second 
Tuesday of October. ( See Const. 1851, Art II , § 2.) 

Sec. 4. No person shall be a representative, who shall 
not have attained the age of twenty-fiVe years, and be a 
citizen of the United States and an inhabitant of this state; 
shad also have resided within the limits of the county in 
which he shall be chosen, one year next preceding his elec- 
tion, unless he shall have been absent on the public business 
of the United States, or of this state, and shall have paid a 
state or county tax. ( See Const. 1851, Art. II , § 3.) 

Sec. 5. The senators shall be chosen biennially, by the 
qualified voters for representatives ; and on their being 
convened in consequence of the first election, they shall be 
divided by lot, from their respective counties or districts, as 
near as can be, into two classes : the seats of the senators of 
the first class shall be vacated at the expiration of the first 
year, and of the second class at the expiration of the second 
year ; so that one-half thereof, as near as possible, may he an- 
nually chosen forever thereafter. (See Const. 1851, Art. II , § 2.) 


Census. 


Apportion- 
ment of 
representa- 
tives. 


Number of 
representa- 
tives. 


When 

chosen. 


Qualifica- 
tions of rep- 
resentatives. 


Senators — 
when and 
how chosen. 


0 


CONSTITUTION OF OHIO, 1802. 


Number of 
senators, 
and how ap- 
portioned. 


Qualifica- 
tions of 
senators. 


Powers of 
each house. 


Journals 
and yeas 
and nays. 


Right of 
members to 
protest. 


Rules and 
light of pun- 
ishment and 
expulsion. 


Vacancies 
in either 
house, how 
filled. 


Privilege of 
members 
from arrest, 
& of speech. 


Sec. 6. The number of senators shall, at the several 
periods of making the enumeration before mentioned, be 
fixed by the legislature, and apportioned among the several 
counties or districts, to be established by law, according to 
the number of white male inhabitants of the age of twenty- 
one years in each, and shall never be less than one-third, 
nor more than one-half, of the number of representatives. 

Sec. 7. No person shall be a senator who has not arrived 
at the age of thirty years, and is a citizen of the United 
States ; shall have resided two years in the county or district, 
immediately preceding the election, unless he shall have 
been absent on the public business of the United States, 
or of this state ; and shall, moreover, have paid a state or 
county tax. ( See Const. 1851, Art. 11, § 2.) 

Sec. 8. The senate and house of representatives, when 
assembled, shall each choose a speaker and its other officers ; 
be judges of the qualifications and elections of its members, 
and sit upon its own adjournments; two-thirds of each house 
shall constitute a quorum to do business ; but a smaller 
number may adjourn from day to day, and compel the at- 
tendance of absent members. ( See Const. 1851, Art. II, §§ 6, 7.) 

Sec. 9. Each house shall keep a journal of its proceed- 
ings, and publish them : the yeas and nays of the members, 
on any question, shall, at the desire of any two of them, 
be entered on the journals. ( See Const. 1851, Art. II, § 9.) 

This journal, when taken in connection with the laws and resolu- 
tions, would seem to be the appropriate evidence of legislative action, 
and the journal cannot be contradicted by parol proof. State v. Moffat, 
5 Ohio, 363. 

Sec. 10. Any two members of either house shall have 
liberty to dissent from, and protest against, any act or reso- 
lution which they may think injurious to the public or any 
individual, and have the reasons of their dissent entered on 
the journals. ( See Const. 1851, Art. II, § 10.) 

Sec. 11. Each house may determine the rules of its pro- 
ceedings, punish its members for disorderly behavior, and, 
with the concurrence of two-thirds, expel a member, but 
not a second time for the same cause ; and shall have all 
other powers necessary for a branch of the legislature of a 
free and independent state. ( See Const. 1851, Art. II, § 8.) 

Sec. 12. When vacancies happen in either house, the 
governor, or the psrson exercising the power of the gover- 
nor, shall issue writs of election to fill such vacancies. (See 
Const. 1851, Art. II, § 11.) 

The General Assembly has always exercised the power of providing 
for vacancies that are about to happen during the official term of the 
members composing its own body. State v. Choate , 11 Ohio , 515. 

Sec. 13. Senators and representatives shall, in all cases, 
except treason, felony or breach of the peace, be privileged 
from arrest during the session of the general assembly, and 







CONSTITUTION OF OHIO, 1802. 


7 


in going to and returning from the same; (1) and for any 
speech or debate in either house, they shall not be ques- 
tioned in any other place. (See Const. 1851, Art. II, § 12.) 

(1.) The effect of this privilege is, that the arrest of a member is 
unlawful and a trespass ab initio, for which he may maintain an action, 
or proceed against the aggressor by way of indictment. He may also 
be discharged by motion to a court of justice, or upon a writ of habeas 
Corpus ; and the person arresting him may also be punished as for a 
contempt. Story on Cons., \ 860, and cam there cited. 

Sec. 11. Each house may punish, by imprisonment, dur- 
ing their session, any person not a member, who shall be 
guilty of disrespect to the house, by any disorderly or con- 
temptuous behavior in their presence; provided such im- 
prisonment shall not, at any one time, exceed twenty-four 
hours. 

Sec. 15. The doors of each house, and of committees of 
the whole, shall be kept open, except in such cases as, in the 
opinion of the house, require secrecy. Neither house shall, 
without the consent of the other, adjourn for more than two 
days, nor to any other place than that in which the two 
houses shall be sitting. ( See Const. 1851, Art. II, § 13, 14.) 

Sec. 16. Bills may originate in either house, but may be 
altered, amended Or rejected by the other. (See Const. 1851, 
Art. II, § 15.) 

Sec. 17. Every bill shall be read on three different days 
in each house, unless, in case of urgency, three-fourths of 
the house where such bill is so depending, shall deem it 
expedient to dispense with this rule : and every bill having 
passed both houses, shall be signed by the speakers of -their 
respective houses. ( See Const. 1851, Art. II, § 16, 17.) 

Sec. 18. The style of the laws of this state shall be : 
“ Be it enacted by the general assembly of the state of 
Ohio.” (See Const. 1851, Art. II, § 18.) 

Sec. 19. The legislature of this state shall not allow the 
following officers of government greater annual salaries than 
as follows, until the year one thousand eight hundred and 
eight, to wit : — The governor, not more than one thousand 
dollars ; the judges of the supreme court, not more than one 
thousand dollars each ; the presidents of the courts of com- 
mon pleas, not more than eight hundred dollars each; the 
secretary of state, not more than five hundred dollars ; the 
auditor of public accounts, not more than seven hundred 
and fifty dollars ; the treasurer, not more than four hundred 
and fifty dollars : no member of the legislature shall receive 
more than two dollars per day, during his attendance on the 
legislature, nor more for every twenty-five miles he shall 
travel in going to, and returning from, the general assembly. 

Sec. 20. No senator or representative shall, during the 
time for which he shall have been elected, be appointed to 
any civil office under this state, which shall have been cre- 
ated, or the emoluments of which shall have been increased, 
during such time. (See Const. 1851, Art. II, § 19.) 


Contempts, 
how pun- 
ished. 


When ses- 
sions to be 
public and 
power of ad- 
journment. 


Where bids 
to originate. 


How often 
Ml to be 
read. 

To be signed 
by the 
speakers. 

Style of 
laws. 

Salaries of 
officers. 


Exclusion 
from office. 


8 


CONSTITUTION OF OHIO, 1802. 


Appropria- 

tions. 


How re- 
ceipts, &c., 
to be pub- 
lished. 
Iippeach- 
pnents, how 
instituted 
and con- 
ducted. 


Who liable 
to impeach- 
ment and 
punishment. 


When ses- 
sions of the 
general as- 
sembly to be 
held. 


Who eligible 
as candi- 
dates or 
members of 
the general 
assembly. 


Who eligible 
to other 
offices. 


Public de- 
faulters not 
eligible as 
members of 
the general 
assembly. 


Sec. 21. No money shall be drawn from the treasury, but 
in consequence of appropriations made by law. ( See Const. 
1851, Art. 77, § 22.) 

Sec. 22. An accurate statement of the receipts and expen- 
ditures of the public money shall be attached to and pub- 
lished with the law's annually. 

Sec. 23. The house of representatives shall have the sole 
power of impeaching, but a majority of all the members 
must concur in an impeachment; all impeachments shall 
be tried by the senate ; and when sitting for that purpose, 
the senators shall be upon oath or affirmation, to do justice 
according to law and evidence ; no person shall be convicted 
without the concurrence of two-thirds of all the senators. 
(. See Const. 1851, Art . 77, § 23.) 

Sec. 24. The governor, and all other civil officers under 
this state, shall be liable to impeachment for any misde- 
meanor in office ; but judgment in such case shall not ex- 
tend further than removal from office, and disqualification 
to hold any office of honor, profit or trust, under this state. 
The party, whether convicted or acquitted, shall, neverthe- 
less, be liable to indictment, trial, judgment and punishment, 
according to law. ( See Const. 1851, Art. 77, § 24.) 

Sec. 25. The first session of the general assembly shall 
commence on the first Tuesday of March next ; and forever 
after, the general assembly shall meet on the first Monday 
of December, in every year, and at no other period, unless 
directed by law, or provided for by this constitution. ( See 
Const. 1851, Art. 77, § 25.) 

Sec. 26. No judge of any court of law or equity, secretary 
of state, attorney general, register, clerk of any court of 
reeord, sheriff or collector, member of either house of con- 
gress, or person holding any office under the authority of the 
United States, or any lucrative office under the authority of 
this state, (provided that appointments in the militia or jus- 
tices of the peace, shall not De considered lucrative offices), 
shall be eligible as a candidate for, or have a seat in, the 
general assembly. ( See Const. 1851, Art. 77, § 4.) 

Sec. 27. No person shall be appointed to any office within 
any county, who shall not have been a citizen and inhabit- 
ant therein, one year next before his appointment, if the 
county shall have been so long erected, but if the county 
shall not have been so long erected, then within the limits 
of the county or counties out of which it shall have been 
taken. 

Sec. 28. No person w T ho heretofore hath been, or hereafter 
may be, a collector or holder of public moneys, shall have a 
seat in either house of the general assembly, until such 
person shall have accounted for, and paid into the treasury, 
all sums for which he may be accountable or liable. (See 
Const. 1851, Art. 77, § 5.) 















































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CONSTITUTION OF OHIO, 1802. 


9 


ARTICLE II. 

OF THE EXECUTIVE. 

Section 1. The supreme executive pewer of this state 
shall be vested in a governor. ( See Const. 1851, Art. Ill, 
§ 5 ; Art. FI, § 2.) 

Sec. 2. The governor shall be chosen by the electors of 
the members of the general assembly, on the second Tues- 
day of October, at the same places, and in the same manner, 
that they shall respectively vote for members thereof. The 
returns of every election for governor, shall be sealed up and 
transmitted to the seat of government, by the returning offi- 
cers, directed to the speaker of the senate, who shall open 
and publish them, in the presence of a majority of the mem- 
bers of each house of the general assembly : the person 
having the highest number of votes shall be governor ; but 
if two or more shall be equal and highest in votes, one of 
them shall be chosen governor by joint ballot of both houses 
of the' general assembly. Contested elections for governor, 
shall be determined by both houges of the general assembly, 
in such manner as shall be prescribed by law. (See Const. 
1851, Art. Ill , § 1, 3.) 

Sec. 3. The first governor shall hold his office until the 
first Monday of December, one thousand eight hundred and 
five, and until another governor shall be elected and quali- 
fied to office ; and forever after, the governor shall hold his 
office for the term of two years, and until another governor 
shall be elected and qualified ; but he shall not be eligible 
more than six years, in any term of eight years. He shall 
be at least thirty j^ears of age, and have been a citizen of the 
United States twelve years, and an inhabitant of this state 
four years next preceding his election. ( See Const. 1851, Art. 
HI, § 2 .) 

Sec. 4. He shall, from time to time, give to the general 
assembly information of the state of the government, and 
recommend to their consideration such measures as he shall 
deem expedient. ( See Const. 1851, Art. Ill , § 7.) 

Sec. 5. He shall have the power to grant reprieves and 
pardons, after conviction, except in cases of impeachment. 
( See Const. 1851, Art. Ill , § 11.) 

Sec* 6. The governor shall, at staled times, receive for 
his services a compensation, which shall neither be increased 
nor diminished, during the term for which he shall have 
been elected. (Const. 1851, Art. Ill , § 19.) 

Sec. 7. He may require information, in writing, from the 
officers in the executive department, upon any subject re- 
lating to the duties of their respective offices, and shall take 
care that the laws be faithfully executed. (See Const. 1851, 
Art. Ill , § 6.) 

Sec. 8. When any officer, the right of whose appointment 
is, by this constitution, vested in the general assembly, 
shall, during the recess, die, or his offiee by any means 
become vacant, the governor shall have power to fill such 


In wham ex- 
ecutive 1 pow- 
er vested. 

When gov- 
ernor shall 
be chosen, 
and how. 


How his 
election to 
be contested. 


His term of 
office. 


Whoeligible 
and for what 
periods. 


He shall 
recommend < 
measures, 

&c. 

May grant 
reprieves 
and pardons. < 

His Compen- 
sation. 


He may re- 
quire writ- 
ten Informa- 
tion, &c. 


Whatyacan- 
cies the gov- 
ernor to fill. 


10 


CONSTITUTION OF OHIO, 1802. 


When and 
how he may 
convene the 
general 
assembly. 
Command- 
er-in-chief 
of militia. 


When he 
may adjourn 
the assem- 
bly. 


Who shall 
fill his 
place when 
vacancy 
occurs.* 


Who ineligi- 
ble. 

Seal of state, 
and by 
s whom kept. 


How grants 
and commis- 
sions issued. 


Secretary of 
state, how 
appointed — 
term of office 
and duties. 


vacancy, by granting a commission, which shall expire 
at the end of the next session of the legislature. 

A commission is the only evidence of the right to exercise these 
offices. State v. Moffat, 5 Ohio, 358. 

A law authorizing the appointment for a period of time beyond the 
close of the next session of the Legislature would he unconstitutional. 
lb. 

Sec. 9. He may, on extraordinary occasions, convene the 
general assembly, by proclamation, and shall state to them, 
when assembled, the purposes for which they shall have been 
convened. (See Const. 1851, Art. Ill , § 8.) 

Sec. 10. He shall be commander-in-chief of the army 
and navy of this state, and of the militia, except when they 
shall be called into the service of the United States. (Sie 
Const. 1851, Art. Ill , § 10.) 

Sec. 11. In case of disagreement between the two houses, 
with respect to the time of adjournment, (he governor shall 
have the power to adjourn the general assembly to such 
time as he thinks proper; provided it be not a period beyond 
the annual meeting of the legislature. (See Const. 1851, Art. 
HI , § 9„) 

Sec. 12. In case of the death, impeachment, resignation 
or removal of the governor from office, the speaker of the 
senate shall exercise the office of governor, until he be 
acquitted or another governor shall be duly qualified. In 
case of the impeachment of the speaker of the senate, or hi s 
death, removal from office, resignation or absence from the 
state, the speaker of the house of representatives shall suc- 
ceed to the office, and exercise the duties thereof, until a 
governor shall be elected and qualified. (Const. 1851, Art. 
Ill, § 15, 17.) 

Sec. 13. No member of congress, or person holding any 
office under the United States, or this state, shall execute 
the office of governor. (Const. 1851, Art. Ill , § 14.) 

Sec. 14. There shall be a seal of this state, which shall 
be kept by the governor, and used by him officially, and 
shall be called “ The Great Seal of the State of Ohio.” 
(See Const. 1851, Art. Ill , § 12.) 

Sec. 15. All grants and commissions shall be in the 
name, and by the authority of the state of Ohio, sealed with 
the seal, signed by the governor, and countersigned by the 
secretary. (See Const. 1851, Art. Ill, § 13.) 

secretary of state. 

Sec. 16. A secretary of state shall be appointed (1) by a 
joint ballot of the senate and house of representatives, who 
shall continue in office three years, if he shall so long behave 
himself well : he shall keep a fair register of all the official 
acts and proceedings of the governor ; and shall, when re- 
quired, lay the same, and all papers, minutes and vouchers 
relative thereto, before either branch of the legislature ; and 
shall perform such other duties as shall be assigned him by 
law. (See Const. 1851, Art. Ill, § 1, 2.) 





CONSTITUTION OF OHIO, 1802. 


11 


(1) The Constitution contemplates two different modes of conferring 
office. One is by appointment, the other by election. When the office 
is to be conferred by the people, or by any considerable body of the 
people, it is spoken of as an election. When it is to be conferred by an 
individual, as by the Governor, or by a select number of individuals, 
as by a judicial court, or by the General Assembly, it is spoken of as 
an appointment State v. McCallister , 11 Ohio, 46. 


ARTICLE III. 

OF THE JUDICIARY. 

Sec. 1. The judicial power (1) of this state, both as to In whom ju- 
matters of law and equity, shall be vested in a supreme dicial power 
court, in courts of common pleas for each county, in justices vested, 
of the peace, and in such other courts as the legislature 
may, from time to time, establish. ( See Const. 1851, Art. 

IV, § 1 .) 

(1.) It is the right of the Legislature to enact laws, and the province 
of the courts to construe them. The Legislature has no power to enact 
a law, declaring what construction or decision the court shall make 
upon acts under which rights and liabilities have already been acquired 
or incurred. As a law, such an act will be enforced ; as a construction 
of previous acts, under which cases are already pending in the courts, 
it will be held void. Schooner Aurora Borealis v. Dobbie, 17 Ohio, 127. 

There may be, and there undoubtedly are, cases where it is proper, 
nay, where it is the duty of a court to refuse to enforce a statute, on 
the ground that it is inconsistent with the supreme law of the land. 

Yet this ought not to be done, unless the statute in question is a plain 
and palpable violation of the Constitution. It should be both against 
the letter and spirit of that instrument. So long as there is a doubt, 
the decision of the court should be in favor of the statute. McCormick 
v. Alexander , 2 Ohio, 75. See Lewis v. McElvain, 16 Ohio, 354. 

To an argument that a law was in contravention of the spirit of the 
Constitution, it was said: “This is rather dangerous ground to tread 
upon in determining the constitutionality of a law. We may all agree 
as to the reading of the Constitution, and generally as to its meaning; 
but when we come to talk of its spirit, it is a different matter. There 
is great danger that we shall conclude that spirit to be in accordance 
with our preconceived opinions or feelings of what it ought to be.” 

State v. Cincinnati , 19 Ohio, 178, 197. 

It is the right and duty of the judicial tribunals to determine whether 
a legislative aet, drawn in question in a suit pending before them, is 
opposed to the Constitution of the United States, or of this state, and if 
so found, to treat it as a nullity. In such case, the presumption is 
always in favor of the validity of the law ; and it is only when manifest 
assumption of authority and a clear incompatibility between the con- 
stitution and the law appear, that the judicial power will refuse to ex- 
ecute it. C. W. & Z. R. Co. v. Clinton Co ., 1 Ohio St., 77 ; 10. S., 105; 

1 O. S., 153. 


12 


CONSTITUTION OF OHIO, 1802. 


The supreme 
court. 


The common 
pleas. 


Criminal 

jurisdiction. 


Sec. 2. The supreme court shall consist of three judges, 
any two of whom shall be a quorum. They shall have orig- 
inal and appellate jurisdiction, (1) both in common law 
and chancery, in such cases as shall be d-ireoted by law; 
provided, that nothing herein contained shall prevent the 
general assembly from adding another judge to the supreme 
court after the term of five years, in which case the judges 
may divide the state into two circuits, within which any 
two of the judges may hold a court. ( See Const. 1851, Art. 
IV , , § 2.) 

(1) Pending a suit in the Common Pleas, the Supreme Court has no 
constitutional jurisdiction of a motion to dissolve an injunction therein, 
nor will a special legislative enactment confer jurisdiction upon that 
court, to prevent the operation of an injunction allowed by the Com- 
mon Pleas, in a case of which that court has taken jurisdiction. Grif- 
fith v. Crawford Co., 20 Ohio, 609. 

Sec. 3. The several courts of common- pleas, shall consist 
of a president and associate judges. The state shall be di- 
vided, by law, into three circuits ; there shall be appointed 
in each circuit a president of the courts, who, during his 
continuance in office 1 , shall reside therein. There shall be 
appointed in each county, not more than three nor less than 
two associate judges, who, during their continuance in office, 
shall reside therein. (1) The president and associate judges, 
in their respective counties, any three of whom shall be a quo- 
rum, shall compose the court of common pleas ; which co„urt 
shall have common law and chancery jurisdiction in all such 
cases as shall be directed by law; provided, that nothing 
herein contained shall be construed to prevent the legisla- 
ture from increasing the number of circuits and presidents, 
after the term of five years. ( See Const. 1851, Art. IF, § 3, 
4, 12.) 

(1) The Legislature may change the boundaries of a county, and 
when such change places an associate judge within the limits of an- 
other county, who does not within a reasonable time, remove into the 
limits of a county for which he was appointed, he .forfeits his office. 
State v. Choate, 11 Ohio, 611 ; State v. Walker, 17 Ohi@, 135. 

Sec. 4. The judges of the supreme court and courts 
of common pleas, shall have complete criminal jurisdiction 
in such cases and in such manner, as may be pointed out by 
law. (-See also Const. 1851, Art. IF, § 4.) 

The Constitution gives the judges of the Supreme Court power 
to take jurisdiction of such criminal cases as shall be pointed out by 
law, and to exercise it in such way as the law may point out. State v. 
Turner, Wright’s Rep., 32. 





























































































































■ — - 



















































































































































































































CONSTITUTION OF OHIO, 1802. 


13 


Sec. 5. The court of common pleas in each county, shall 
have jurisdiction of all probate and testamentary matters, (1) 
granting administration, the appointment of guardians, and 
such other cases as shall be prescribed by law. ( See Const. 
1851, Art IV, § 4, 8.) 

(1) By this Constitution, exclusive jurisdiction in probate and testa- 
mentary matters is vested in the courts of common pleas, and the orders 
of those courts made in the progress of such matters cannot be reviewed 
l n the Supreme Court upon certiorari. Matter of Gregory , 19 Ohio, 357. 
See also Ewing v. Hollister, 7 Ohio, 2 ph 138. 

Sec. 6. The judges of the court of common pleas, shalj, 
within their respective counties, have the same powers with 
the judges of the supreme court, to issue writs of certiorari 
to the justices of the peace, and to cause their proceedings 
to be brought before them, and the like right and justice to 
be done. ( See Const. 1851, Art. IV, § 4 .) 

Sec. 7. The judges of the supreme court shall, by virtue 
of their offices, be conservators of the peace throughput the 
state. The presidents of the courts of common pleas shall, 
by virtue of their offices, be conservators of the peace in their 
respective circuits ; and the judges of the court of common 
pleas shall, by virtue of their offices, be conservators of the 
peace in their respective counties. 

Sec. 8. The judges of the supreme court, the presidents 
and the associate judges of the courts of the common pleas, 
shall be appointed (1) by a joint ballot of both houses of the 
general assembly, and shall hold their offices for the term of 
seven years, (2) if so long they behave well. The judges of 
the supreme court, and the presidents of the courts of com- 
mon pleas shall, at stated times, receive for their services 
an adequate compensation, to be fixed by law, which shall 
not be diminished during their continuance in office ; but 
they shall receive no fees or perquisites of office, nor hold 
any other office of profit or trust under the authority of this 
state or the United States. ( See Const. 1851, Art. 1 V, § 12, 14.) 

1. The Legislature may fill a vacancy that has happened or that is 
certain to happen before the meeting of the next General Assembly. 
State v. Choate , 11 0., 511. 

Although this power of appointment is vested in both houses of 
the General Assembly, still the Constitution has not prescribed the 
particular manner in which it shall be exercised, except that it shall 
be by 1 11 joint ballot.” This is left to be regulated by the legislative au- 
thority, and is regulated by joint rules of the two houses. An individ- 
ual appointed by “joint, ballot” cannot be deprived of the office by 
mistake of the clerks, for such mistake would be corrected by the 
bodies by whom they are appointed ; nor by neglect of the speakers, 
nor in any other way except in the mode pointed out in the Constitu- 
tion. State v. Moffat, 5 Ohio, 358. 

(2) A law authorizing any other body than the General Assembly 
to appoint a judge for the term of seven years would be unconstitutional. 
State v. Moffat, 5 Ohio, 358. 


Probate and 
testament- 
ary. 


Certiorari. 


Judges con- 
servators of 
the peace. 


Judges, how 
appointed, 
term of 
office, and 
salaries. 


14 


CONSTITUTION OF OHIO, 1802. 


Clerks of 
courts — 
term, &c. 


May be 
removed. 


Terms of 
courts. 


Justices of 
the peace. 


Style of pro* 
cess— prose- 
cutions and 
indictments* 


Who may 

vote. 


Sec. 9. Each court shall appoint its own clerk for the 
term of seven years; but no person shall be appointed clerk, 
except pro tempore , who shall not produce to the court, ap- 
pointing him, a certificate from a majority of the judges of 
the supreme court, that they judge him to be well qualified 
to execute the duties of the office of clerk to any court of the 
same dignity with that for which he offers^ himself. They 
shall be removable for breach of good behavior, at any time, 
by the judges of the Respective courts. ( See Const. 18ol, Art. 

iv ; § 16.) 

Sec. 10. The supreme court shall be held once a year in 
each county, and the courts of common pleas shall be holden 
in each county, at such times and places as shall be pre- 
scribed b} r law. 

The Supreme Court, under this Constitution, could direct a struck 
jury for the trial of a cause pending before it, in a different county 
from that in which the order Was made. Seeley v. Blair, 6 Ohio, 448. 

Sec. 11. A competent number of justices of the peace 
shall be elected by the qualified electors in each township in 
the several counties, and shall continue in office three years, 
whose powers and duties shall, from time to time, be regu- 
lated and defined by law. ( See Const. 1851, Art. IV , § 9.) 

Sec. 12. The Style of all process shall be, “ The State of 
Ohio ; if all prosecutions shall be carried on in the name and 
by the authority of the State of Ohio ; and all indictments 
shall conclude, “ against the peace and dignity of the same.’* 
(See Const. 1851, Art. IV, § 20.) 

ARTICLE IV. 

OF ELECTIONS AND ELECTORS. 

Section 1. In all elections, all white male inhabitants 
above the age of twenty-one years, having resided in the 
state one year next preceding the election, and who have 
paid or are charged with a state or county tax, shall enjoy 
the right of an elector ; hut no person shall be entitled to 
vote, except in the county or district in which he shall actu- 
ally reside at the time of the election. (See Const. 1851, Art. 

v;% i.) 

1. By the proper construction of the term “ white male inhabit- 
ants,” as used in this Constitution, all nearer white than black, or of the 
grade between the mulatto and white, are entitled to enjoy every 
political and social privilege of the white citizen. Jeffries v. Ankeny, 11 
Ohio, 375. 

Where the Court of Common Pleas instructed the jury that a man 
who has any negro blood whatever is not a legal voter, it was held to 
be error. Thacker v. Hawk, 11 Ohio, 376. 

Youth of negro, Indian and white blood, but of “more than one-half 
white blood,” are entitled to the benefits of the common school fund. 
Lane v. Baker, 12 Ohio, 237, following Gray v. State, 4 Ohio, 353. 
See also State v. Cincinnati, 19 Ohio, 197. 














































































CONSTITUTION OF OHIO, 1802. 


15 


Children of a white mother and a father three-fourths white are 
white children, within the meaning of the school laws. Williams v. 
School District 6, Wright’s Rep., 578. 


Sec. 2. All elections shall be by ballot. ( See Const. 1851, 
Art. V, § 2.) 

Sec. 3. Electors shall, in all cases except treason, felony 
or breach of the peace, be privileged from arrest, during 
their attendance at elections, and in going to and returning 
from the same. (See Const. 1851, Art. V, § 3.) 

Sec. 4. The legislature shall have full power to exclude 
from the privilege of electing, or being elected, any person 
convicted of bribery, perjury, or any other infamous crime. 
( See Const. 1851, Art. V, § 4.) 

Sec. 5. Nothing contained in this article shall be so con- 
strued as to prevent white male persons above the age of 
twenty-one years, who are compelled to labor on the roads of 
their respective townships or counties, and who have resided 
one year in the state, from having the right of an elector. 
(See Const 1851, Art V, § 1.) 


By ballot. 

Voters, .when 
privileged 
from arrest. 


F orfeiture 
of elective 
franchise. 


Who may 
vote. 


ARTICLE V. 


OF THE MILITIA OFFICERS. 


('See Const. 1851, Art. IX.) 

Section 1. Captains and subalterns in the militia shall 
be elected by those persons, in their respective company 
districts, subject to military duty. 

Sec. 2. Majors shall be elected by the captains and sub- 
alterns of the battalion. 

Sec. 3. Colonels shall be elected by the majors, captains 
and subalterns of the regiment. 

Sec. 4. Brigadiers general shall be elected by the com- 
missioned officers of their respective brigades. 

Sec. 5. Majors general and quartermasters general shall 
be appointed by joint ballot of both houses of the Legisla- 
ture. 

Sec. 6 . The governor shall appoint the adjutant general. 
The majors general shall appoint their aids and other divi- 
sion staff officers. The brigadiers general shall appoint their 
brigade majors and other brigade staff officers. The com- 
manding officers of regiments shall appoint their adjutants, 
quartermasters and other regimental staff officers ; and the 
captains and subalterns shall appoint their non-commis- 
sioned officers and musicians. 

Sec. 7. The captains and subalterns of the artillery and 
cavalry, shall be elected by the persons enrolled in their 


How officers 
elected. 

Same 

subject. 

Same 

subject. 

Same 

subject. 

Same 

subject 


Same 

subject. 


Same 

subject. 


16 


CONSTITUTION OF OHIO, 1802. 


Sheriff ^and 
coroner. 


State treas- 
urer and 
auditor. 

Town and 

township 

officers. 


Other 

officers. 


Oath of 
officers. 


Bribery at 
electWns. 


respective corps ; and the majors and colonels shall be ap- 
pointed in such manner as shall be directed by law. The 
colonels shall appoint their regimental staff ; and the cap- 
tains and subalterns their non-commissioned officers and 
musicians. 


ARTICLE VI. 

OF CIVIL OFFICERS. 

Sec. 1. There shall be elected (1) in each county, one 
sheriff and one coroner, by the citizens thereof, who are 
qualified to vote for members of the assembly ; they shall 
be elected at the time and place of holding elections for 
members of assembly ; they shall continue in office two 
years, if they shall so long behave well, and until successors 
be chosen and duly qualified : provided, that no person shall 
be eligible as sheriff for a longer term than four years in 
any term of six years. {Const. 1851, Art. X, § 1-8.) 

(1) Laws requiring these officers to be commissioned, give bond, and 
take oath of office are not unconstitutional. State v. Moffat, 5 Ohio, 358. 

Sec. 2. The state treasurer and auditor shall be trien- 
nially appointed by a joint ballot of both houses of the 
legislature. 

Sec. 3. All town and township officers shall be chosen 
annually, by the inhabitants thereof, duly qualified to vote 
for members of assembly, at such time and place as may be 
directed by law. {See Const. 1851, Art X , § 1.) 

Sec. 4. The appointment of all civil officers, not other- 
wise directed by this constitution, shall be made in such 
manner as may be directed by law. 


ARTICLE VII. 

OFFICIAL OATHS. 

Sec. 1. Every person who shall be chosen or appointed 
to any office of trust or profit, under the authority of this 
state, shall, before the entering on the execution thereof, 
take an oath or affirmation to support the constitution of 
the United States and of this state, and also an oath of office. 
{See Const. 1851, Art. XV, § 7.) 

BRIBERY AT ELECTIONS. 

Sec. 2. • Any elector, who shall receive any gift or reward 
for his vote, in meat, drink, money or otherwise, shall suffer 
such punishment as the law shall direct ; and any person 
who shall, directly or indirectly, give, promise, or bestow 
any such reward, to be elected, shall thereby be rendered 
incapable, for two years, to serve in the office for which he 
was elected, and be subject to such other punishment as 
shall be directed by law. 













CONSTITUTION OF OHIO, 1802. 


17 


OF NEW COUNTIES. 

Sec. 3. No new county (1) shall be established by the Extent cf 
general assembly, which shall reduce the county or counties, new counties 
or either of them, from which it shall be taken, to less con- and repre- 
tents, than four hundred square miles; nor shall any county sensation 
be laid off, of less contents. Every new county, as to the therein - 
right of suffrage and representation, shall be considered as 
a part pf the county or counties from which it was taken, 
until entitled by numbers to the right of representation. 

( See Const. 1851, Art. II , § 30.) 

(1) Where the Legislature has erected a new county out of territory 
formerly belonging to other counties, and to compensate such counties 
for the loss of territory occasioned by the erection of a new county, has 
added territory to them from adjoining counties, it is competent for the 
Legislature to provide that the county receiving the accession of terri- 
tory shall pay an equitable proportion of the indebtedness of the 
county from which such territory has been taken ; and the provision 
of the statute creating the county of Auglaize, which requires Allen 
county to pay a portion of the debts of Putnam county, is valid. Put- 
nam Co. v. Allen Co., 1 Ohio St., 322. 

OF THE SEAT OF GOVERNMENT. 

Sec. 4. Chillicothe shall be the seat of government until 
the year one thousand eight hundred and eight. No money 
shall be raised until the year one thousand eight hundred 
and nine, by the legislature of this state, for the purpose of 
erecting public buildings for the accommodation of the legis- 
lature. ( See Const. 1851, Art. XV, § 1.) 

OF AMENDMENTS TO THE CONSTITUTION. 

Sec. 5. That after the year one thousand eight hundred Of amend- 
and six, whenever two-thirds of the general assembly shall ments to the 
think it necessary to amend or change this constitution, cons 1 u 10n ’ 
they shall recommend to the electors, at the next election 
for members to the general assembly, to vote for or against 
a convention ; and if it shall appear that a majority of the 
citizens of the state, voting for representatives, have voted 
for a convention, the general assembly shall, at their next 
session, call a convention, to consist of as many members as 
there be in the general assembly ; to be chosen in the same 
manner, at the same place, and by the same electors that 
choose the general assembly ; who shall meet within three 
months after the said election, for the purpose of revising, 
amending or changing the constitution. But no alteration 
of this constitution shall ever take place, so as to introduce 
slavery or involuntary servitude into this state. ( See Const. 

1851, Art. XVI, § 2.) 

BOUNDARIES OF THE STATE. 

Sec. 6. That the limits and boundaries of this state be 
ascertained, it is declared, that they are, as hereafter men- 

2 


18 


CONSTITUTION OF OHIO, 1802. 


Boundaries 
of the state. 


Right to 
freedom and 
to establish 
and alter 
government. 


Of slavery 
and involun- 
tary servi- 
tude. 


tioned ; that is to say : bounded on the east by the Pennsyl- 
vania line ; on the south by the Ohio river to the mouth of 
the Great Miami river ; on the west by the line drawn due 
north from the mouth of the Great Miami, aforesaid ; and on 
the north by an east and west line drawn through the south- 
erly extreme of Lake Michigan, running east, after inter- 
secting the due north line aforesaid, from the mouth of the 
Great Miami until it shall intersect Lake Erie or the terri- 
torial line, and thence with the same, through Lake Erie, 
to the Pennsylvania line aforesaid ; provided always, and it 
is hereby fully understood and declared by this convention, 
that if the southerly bend or extreme of Lake Michigan 
should extend so far south, that a line drawn due east 
from it should not intersect Lake Erie, or if it should 
intersect the said Lake Erie, east of the mouth of the 
Miami river of the lake, then and in that case, with the 
assent of the congress (1) of the United States, the north- 
ern boundary of this state shall be established by, and ex- 
tended to, a direct line running from the southern extremity 
of Lake Michigan to the most northerly cape, of the Miami 
Bay, after intersecting the due north line from the mouth of 
the Great Miami river as aforesaid, thence northeast to the 
territorial line, and, by the said territorial line, to the Penn- 
sylvania line. " 

(1) In June, 1836, Congress passed an act fixing the northern bound- 
ary at a direct line drawn from the southernly extreme of Lake Michigan 
to the most northernly cape in the Maumee Bay, and thence intersect- 
ing the territorial line, and thence with the same to the Pennsylvania 
line. ( See Const. 1851, Preamble and Note. And see also Daniels v. 
Stevens, 19 Ohio, 222 ; Myers v. Manhattan Bank, 20 Ohio, 283.) 

ARTICLE VIII. 

BILL OF RIGHTS. 

That the general, great and essential principles of liberty 
and free government may be recognized and forever unalter- 
ably established, we declare, 

Section 1. That all men are born equally free and inde- 
pendent, and have certain natural, inherent and unalien- 
able rights ; amongst which are the enjoying and defending 
life and liberty, acquiring, possessing and protecting prop- 
erty, and pursuing and obtaining happiness and safety ; and 
every free republican government, being founded on x their 
sole authority, and organized for the great purpose of pro- 
tecting their rights and liberties, and securing their inde- 
pendence ; to effect these ends, they have at all times a com- 
plete power to alter, reform or abolish their government, 
whenever they may deem it necessary. (See Const. 1851, 
Art. J, § 1, 2.) 

Sec. 2. There shall be neither slavery nor involuntary 
servitude in this state, otherwise than for the punishment 
of crimes, whereof the party shall have been duly convicted ; 
nor shall any male person, arrived at the age of twenty-one 


























CONSTITUTION OF OHIO„ 1802. 


19 


years, or female person arrived at the age of eighteen years, 
be held to serve any person as a servant, under the pretense 
of indenture or otherwise, unless such person shall enter 
into such indenture while in a state of perfect freedom, and 
on condition of a bona fide consideration received, or to be 
received, for their service, except as before excepted. Nor 
shall any indenture of any negro or mulatto, hereafter made 
and executed out of the state, or if made in the state, where 
the term of service exceeds one year, be of the least valid- 
ity, except those given in the case of apprenticeships. 
( See Const. 1851, Art. J, § 6.) 

Sec. 3. That all men have a natural and indefeasible 
right to worship Almighty God, according to the dictates of 
conscience ; that no human authority can, in any case what- 
ever, control or interfere with the rights of conscience ; (1) 
that no man shall be compelled to attend, erect or support 
any place of worship, or to maintain any ministry, against 
his consent ; and that no preference shall be given, by law, 
to any religious society or mode of worship, and no religious 
test shall be required, as a qualification, to any office of 
trust or profit. But religion, morality and knowledge, being 
essentially necessary to good government and the happiness 
of mankind, schools and the means of instruction shall for- 
ever be encouraged by legislative provision, not inconsistent 
with the rights of conscience. (2) {See Const. 1851, Art. I , § 7.) 


(1) No person can be called in question under our Constitution for 
his religious belief ; but if it be necessary to inquire into the tenets of 
a body of worshipers to settle a controversy between them about prop- 
erty, that is constitutional. Kisor v. Stancifer, Wright’s Bep., 323. 

Quere . — If inquiring into a man’s religious belief, to determine his 
competency as a witness, is not a violation of the Constitution ? East- 
erday v. Kilborn, Wright’s Bep., 345. 

One believing in the existence of God, who sees him in all created 
nature, and who believes he is as much obliged to tell truth without 
oath as with, and in future rewards and punishments in this life, and 
that if he does wrong his conscience will condemn him, is competent. 
Ib. 

The prohibition of common labor on the Sabbath, in the act for the 
prevention of immoral practices, embraces the business of “trading, 
bartering, selling or buying any goods, wares or merchandise.” Cin- 
cinnati v. it ice, 15 Ohio, 225. 

The ordinance of the city of Cincinnati prohibiting such trading, etc., 
on Sunday, is void as to those who conscientiously do observe the 
seventh day of the week as the Sabbath. Ib. 

(2) The whole subject of organizing and regulating schools is left to 
the General Assembly. But it is insisted that the act of 1849 (2 Cur- 
wen, 1469), to authorize the establishment of separate schools for col- 
ored children, is in contravention of the spirit of the Constitution. 
This is dangerous ground to tread upon in determining the constitu- 
tionality of a law. We may agree as to the reading of the Constitu- 
tion, and generally of its meaning ; but when we come to talk of its 


20 


CONSTITUTION OF OHIO, 1802. 


Of the in- 
violability 
;of private 
property. 


spirit, it is a different matter. There is danger that we shall conclude 
the spirit to be in accordance with our preconceived opinions or feel- 
ings of what it ought to be. And the court held the act in question to 
fee constitutional. State v. Cincinnati, 19 Ohio, 197 — Hitchcock, J. 

Sec. 4. Private property ought and Shall ever be held 
inviolate, but always subservient to the public welfare, pro- 
vided a compensation in money be made to the Owner. (1) 
(See Const. 1851 , Art. 1 \ § 19 , and note.) 

(1) The power to appropriate property for public uses, for the pur- 
pose of promoting the general welfare, is inherent in every govern- 
ment ; but this power must be exercised in cases and -for objects strictly 
public ; and the Constitution of the United States and of the State of 
Ohio, in all cases insure that principle of natural justice, which re- 
quires compensation to be made to the individual deprived of his prop- 
erty. Cooper v. Williams, 4 Ohio, 253, s. c. affirmed 5 Ohio, 391 ; and 
,see Le Clerq v. Gallipolis, 7 Ohio, 1 pt. 217. 

Private property may be taken for public use, when provision for 
the assessment and payment of damages is made, whether the owner 
is actually paid or not. Mercer v. Me Williams, Wright’s Hep., 132. 

If the right to appropriate private property to the public use de- 
pended upon the movement of the owner it would be useless, as, if he 
chose to sell his property, he could do so without the exercise of the 
sovereign power. Ib. 

A canal is such a public work that private property may be taken in 
/constructing it. Cooper v. Williams, 4 Ohio, 253 ; also, Willyard v. Ham- 
ilton, 7 Ohio, 2 pt. Ill ; and also in repairing it. Bates v. Cooper, 5 
Ohio, 115. A toll-bridge authorized by law is such a work also. Young 
v. Buckingham, 5 Ohio, 485. "So are public streets. Hickox v. Cleveland, 

8 Ohio, 543 ; Symonds v. Cincinnati, 14 Ohio, 147 ; Brown v. Cincinnati, 14 
Ohio, 541. So are turnpikes. Kemper v. C. C. & W. Tp. Co., 11 Ohio, 
393 ; and railroads. Moorehead v. L. M. R. Co., 17 Ohio, 350. 

The authority granted to officers of the State, under the act of 1825, 
(2 Chase, 1476,) to take private property to aid in the construction and 
repair of the public works, is constitutional. Nor is it necessary that 
compensation shall be made to the owner in advance ; it is sufficient if 
provision be made by law for compensating the owner, so that he may 
have compensation if he desire. Bates v. Cooper, 5 Ohio, 115. 

Consequential injuries sustained by individuals in the grading and 
leveling of streets, are not within the protection of this provision. But 
it is in the power of the Legislature to award compensation to the party 
injured. Hickox v. Cleveland, 8 Ohio, 543. 

The S.tate has not the constitutional power to take the property of 
one and transfer it to another, in compensation for damages sustained 
in the appropriation of land to public use. Before the owner can, 
without his consent, be deprived of land for public use, the Legislature 
must declare by law that the public welfare requires it, directing the 
mode of ascertaining its value, and provide for its payment. McArthur 
V. Kelly, 5 Ohio, 139 ; see Foote v. Cincinnati, 11 Ohio, 410. 

The special act passed by the Legislature January 7, 1813, (Land 
Laws, 275 ; 11 0. L. 22,) authorizing a partition and sale of the lands 









CONSTITUTION OF OHIO, 1802. 


21 


of Aaron Olmstead, deceased, was constitutional, and the sales made by 
the trustees named in the act are legal, and a bar to any claim set up 
by said devisees or any person claiming under them. Carroll v. Olm- 
stead, 16 Ohio, 251. 

The Legislature has constitutional power to pass a law subjecting a 
decedent’s lands to the payment of his debts. IaiJIow v. Johnson, 3 
Ohio, 553. 

The power of the Legislature, under this Constitution, to take from 
the owner the absolute fee simple of his land, without any other com- 
pensation than the benefits to result from the uses for which the land 
is taken, and then to abandon those uses, and sell the lands, to be held 
and used by the purchaser as private property, is, to say the least, very 
questionable. It seems, in effect, to be the taking of private property 
for private use, without any compensation whatever. Corwin v. Cowan , 
12 Ohio St., 633. 

When private property is appropriated to public uses, it is not 
unconstitutional, in assessing the damages, to deduct therefrom the 
benefits conferred upon the owner by the appropriation. Symonds v. 
Cincinnati, 14 Ohio, 147. 

Benefits conferred may be set off against the value of property appro- 
priated for public use. Brown v. Cincinnati, 14 Ohio, 541. 

A tax authorized by the Legislature to construct works of internal 
improvement on behalf of the state, or to aid in their construction by 
subscribing to the capital stock of corporations created for that purpose, 
and to levy taxes to raise the means ; and by an exercise of the same 
power to authorize a county to subscribe to a work of that character 
running through or into such county, and to levy a tax to pay the sub- 
scription, is not beyond the legitimate scope of local, municipal taxa- 
tion, and was not opposed to this section. C. W. & Z. R. Co. v. Clinton 
Co.., 1 Ohio St., 77. 

Private acts of incorporation which confer power to subject private 
property to public use, should be strictly construed. Upon this prin- 
ciple it was held that a railroad company having once located and con- 
structed its road, could not re-locate it, and for that purpose appro- 
priate private property, although its charter gave it authority to vary 
the route and change the location after the first selection had been 
made, whenever a better and cheaper route could be had, or 'whenever 
any obstacle to the continuance of the location was found, either by 
difficulty of construction or procuring right of way at a reasonable 
cost. Moovehead v. Little Miami R. Co., 17 Ohio, 340. 

Subscriptions by municipal corporations to the capital stock of rail- 
-road companies are not in contravention of this Constitution. Loomis 
v. Spencer, 1 Ohio St., 153 ; The Steubenville andlnd. R. Co. v. Tru&. North 
Tp., 1 Ohio St., 105. 

The Legislature has no constitutional power to authorize the major- 
ity of citizens in a county to vote a subscription of stock to a railroad 
company that shall be binding on the property of the minority. Obiter 
dictum of Judge Spalding in case of Griffith v. Crawford Co., 20 Ohio, 
<609. 

An incorporated road company, which is authorized by its charter to 
2av out and construct a turnpike road not exceeding one hundred feet 


22 


CONSTITUTION OF OHIO, i602. 


Search war- 
rants and 
general war- 
rants. 


Of the 
freedom of 
speech and 
the press. 


in width, to erect gates and collect toll, has no right to appropriate for 
a toll-house land lying without the line of the road. Kemper v. C. C. & 
W. Tp. Co., 11 Ohio, 392. 

Where, under the charter of a turnpike company, damages are 
assessed for injuries done to the land over w T hich the road passes, the 
land owner cannot afterward sustain an action against one employed to 
make the road, for cutting the timber within the lines of the road into 
cord-wood and gelling it. Prather v. Ellison, 10 Ohio, 396. 

It is no violation of the Constitution for the General Assembly to 
provide in the charter of a town that the towm council may impose the 
duty of making sidewalks upon the lot owners ; and if any one neglect 
to perform the duty, the council may cause the work to be done for 
him, and assess the amount expended as tax upon the lot. Bonsall v. 
Town of Lebanon, 19 Ohio, 418. 

A discriminating assessment for the improvement of streets laid upon 
grounds immediately benefited, in proportion to such benefit, w r as not 
opposed to this section. Scovill v. Cleveland, 1 Ohio St., 126. 

Although the interests of riparian proprietors in streams of w r ater 
be appropriated for the purposes of a canal, yet w T ater cannot be taken 
from a stream for the purpose of creating hydraulic power to sell or 
lease on behalf of the state. Cooper v. Williams, 5 Ohio, 391 ; Bucking- 
ham v. Smith, 10 Ohio, 288. 

The Legislature cannot, by declaring a river navigable which is not 
so in fact, deprive the riparian proprietors of their right to the use of 
the v’ater for hydraulic and other purposes. Walker v. Board of Public 
Works, 16 Ohio, 540. 

A law authorizing private property to be appropriated for public use r 
without providing compensation to the owner, is void. Foote v. Cincin- 
nati, HO., 408. 

Sec. 5. That the people shall be secure in their per- 
sons, houses, papers and possessions, from unwarrantable 
se1fr&hes(l) and seizures; and that general warrants, 
whereby an office* may be commanded to search suspected 
places, without probable evidence of the fact committed, or 
to seize any person or persons not named, whose offenses are 
not particularly described, and without oath or affirmation,, 
are dangerous to liberty, and shall not be granted. (See 
Const. 1851, Art. 14.) 

(1) It will not justify searching a man’s house that one has been 
arrested there having in his possession counterfeit money. Existence 
on the premises of guilty implements, or evidences of crime, will war- 
rant a search, but if not found there, the jurisdiction fails. Circum- 
stances of reasonable suspicion may be proved in mitigation. Simpson 
v. McCaffrey, 13 Ohio, 508. 

Sec. 6. That the printing presses shall be open and free 
to every citizen wffio wishes to examine the proceedings of 
any branch of government, or the conduct of any public 
officer ; and no law shall ever restrain the right thereof. 












































































CONSTITUTION OF OHIO, 1802. 


23 


Every citizen has an indisputable right to speak, write or 
print, upon any subject, as he thinks proper, being liable 
for the abuse of that liberty. In prosecutions for any publi- 
cation respecting the official conduct of men in a public 
capacity,, or where the matter published is proper for public 
information, the truth thereof may always be given in evi- 
dence.; and in all indictments for libels, the jury shall have 
the right to determine the law and the facts, under the 
direction of the court, as in other cases. (1) (See Const. 1851, 
Art. I, § 11.) 

(1) Under this section the jury in criminal cases are not absolute 
judges of the law, but only under the direction of the Court, as in 
other cases. Montgomery v. State, 11 Ohio, 424. 

Sec. 7. That all courts shall be open, and every person 
for an injury done him in his lands, goods, person or reputa- 
tion, shall have remedy by the due course of law, and right 
and justice administered without denial or delay. (See 
Const. 1851, Art. I , § 16.) 

Sec. 8. The right of trial by jury shall be inviolate. 
(See Const. 1851, Art. I, § 5.) 

The right of the trial by jury was guarded by the ordinance of 
1787, but it could never have been intended that, in every possible case, 
it should he enjoyed. Judicial proceedings, according to the common 
law, are secured, but this could never have been intended so to restrict 
the future legislative power of the territory or state that chancery 
proceedings could not be authorized, or other proceedings necessary to 
the ends of justice. Cochran v. Boring, 17 Ohio, 409, 425. 

It was held to be no infringement upon this section for a court of 
law by adapting the modes of proceeding which belonged to courts of 
chancery, in execution of the occupying claimant law, as it then ex- 
isted in this state, to ascertain the value of occupant’s improvements? 
by commissioners instead of a jury. Hunt v. McMahon, 5 Ohio, 133. 

The value of private property taken for public uses, may rightfully 
be assessed by commissioners, that hot being a case for trial by jury 
secured in the Constitution, for the reason that it had never been so 
recognized in England or this country prior to the adoption of that 
instrument. Willyard v. Hamilton, 7 Ohio, 2 pt., 115. 

The same doctrine was held in Cooper v. Williams, 4 Ohio, 2o3 ; Bates 
v. Cooper, 5 Ohio, 118 ; Young v. Buckingham, 5 Ohio, 4S5. In the lat- 
ter case, the constitutional validity of assessing by commissioners the 
value of private property taken for public use was not questioned, 
although the subject was before the court. Also Hogg v. Zanesville, C. 
A M. Co., 5 Ohio, 410 ; Symonds v. Cincinnati, 14 Ohio, 147. 

There is a total inapplicability of the use of jury trial in a suit for 
consequential injuries sustained by individuals in the grading and level- 
ing of streets. Hickox v. Cleveland, 8 Ohio, 546.. 

Sec, 9. That no' power of suspending laws shall be exer- 
cised, unless bv the legislature. ( See Const. 1851, Art. I 7 
§ 18 -) 


Of libels. 


Of redress 
in courts. 


Trial by 
jury. 


Suspension 
of laws. 


24 


CONSTITUTION OF OHIO, 1802, 


Of prisoners 
and charges 
against 
them. 


Of the trial 
of accused 
persons and 
their rights. 


Sec. 10. That no person, arrested or confined in jail, 
shall be treated with unnecessary rigor, or be put to answer 
any criminal charge, but by presentment, indictment or im- 
peachment. (1) ( See Const. 1851, Art. 1 , § 10.) 

(1) It is true, for offenses strictly criminal or infamous, punishment 
can only be inflicted through the medium of an indictment or present- 
ment of the grand jury. There are, however, many offenses, made so 
by statute, which are quasi criminal, and where the Legislature may 
direct the mode of redress, untrameled by this constitutional provi- 
sion. Such is Sabbath-breaking, selling spirituous liquors on Sunday, 
and disturbance of religious meetings, with many others. There are 
many offenses, though decidedly immoral and mischievous in their 
tendencies, that are not crimes, but, at most, only quasi criminal. Of 
such, jurisdiction may be given to a justice of the peace or the mayor 
of an incorporated town. Markle v. Town Council of Akron , 14 Ohio, 
589. 


Sec. 11. That in all criminal prosecutions, the accused 
hath a right to be heard by himself and hi& counsel; (1) to 
demand the nature and cause of the accusation against him, 
and to have a copy thereof ; to meet the witnesses face to 
face ; to have compulsory process for obtaining witnesses in 
his favor ; and in prosecutions by indictment or present- 
ment, a speedy public trial, by an impartial jury of the 
county or district in which the offense shall have been com- 
mitted; (2) and shall not be compelled to give evidence 
against himself, nor shall he be twice put in jeopardy for 
the same offense, (8) ( See Const. 1851, Art. I, § 10.) 

(1) On the trial of an indictment for a criminal offense, and at the 
return of the verdict it is the right of the accused to be present, and if 
prevented by imprisonment or other improper means, he is entitled to 
a new trial. Rose v. The State, 20 Ohio, 31. 

In criminal cases, the verdict should be received in presence of the 
prisoner, that he may have the jury polled. Sargent v. The State, 11 
Ohio, 472. 

It is not error to omit giving notice to the prisoner’s counsel, that he 
may be present when the verdict is to be delivered by the jury. Sut- 
cliffe v. The State, 18 Ohio, 469. 

(1) “ It is the right of the accused to have a public trial, that he shall 

meet the witnesses face to face before the public, and that all that can be 
said or preferred against him, and that all that can be said or urged in 
his favor, shall be in the hearing and presence of the public. The 
witnesses shall give their testimony in public, and the court shall 
declare the law in public; and the jury are sworn to render their ver- 
dict according to the law and the evidence thus publicly given. In no 
other way can the jury be advised of a fact or principle of law touch- 
ing the case of the accused. It is his right thus to have every body 
know for what he is tried and why he is condemned, and to witness 


I 














CONSTITUTION OF OHIO, 1802. 


25 


the manner, tone and temper of his prosecution, that he may be sub- 
jected to no other influence than truth and law, and that mercy which 
construes every doubt to his benefit. The court charged with his 
trial have no right to hold any communication with the jury touching 
his case, except in the presence of the prisoner, and before the public. 
The court cannot secretly communicate to the jury what they have 
said respecting the law of the case. It is the right of the accused to 
know that the court communicate no new principle of law which had 
not been before publicly declared, nor is he at all bound to trust to the 
court or judge in this matter. It is his great privilege, and no power 
can impair it.” Per Read, J., Kirk v. State, 14 Ohio, 513. 

(3) In a capital case, where the jury state they cannot agree, the 
court may, in their discretion, discharge them, remand the prisoner 
for another trial, and continue the case. Hurley v. The State, 6 Ohio, 
400. 

After the jury is impanneled and sworn, if a nolle prosequi be entered 
by the prosecuting attorney, with leave of the court, and without the 
consent of the prisoner, it is a good bar to another indictment for the 
same crime. A judgment on the verdict of conviction or acquittal is 
not necessary in order that either may constitute a bar to another in- 
dictment for the sam# offence. Mounts v. The State, 14 Ohio, 295. 

After a verdict of guilty and judgment reversed, on account of 
error in the proceedings, the prisoner is not protected from a second 
trial before a jury by this provision. This rule goes upon the supposi- 
tion that the accused never was in jeopardy. Sutcliffe v. The State, 18 
Ohio, 469. 

Upon a plea of autrefois acquit, the true test to determine whether 
the accused has been twice put in jeopardy for the same offense, is, 
whether the facts alleged in the second indictment, if proven to be 
true, would have warranted a conviction on the first. Price v. The State, 
19 Ohio, 423. 

Sec. 12. That all persons shall be bailable by sufficient 
sureties, unless for capital offenses, where the proof is evi- 
dent or the presumption great ; (1) and the privilege of the 
writ of habeas corpus shall not be suspended, unless, when 
in case of rebellion or invasion, the public safety may re- 
quire it. ( See Const. 1851, Art. 1, §§ 8, 9.) 

(1) The court will not, as a matter of course, admit to bail because 
the jury in a trial for murder have not agreed’upon a verdict. State v. 
Summons, 19 Ohio, 139. 

Most undoubtedly the same authority which prescribes the amount 
of bail, and passes upon the sufficiency of the sureties — which exer- 
cises the same power in all analogous cases known* to our laws — is to 
decide whether “the proof be evident or the presumption great.” If 
the evidence exhibited on the hearing of the application be of so weak 
a character that it would not sustain a verdict of guilty against a motion 
for a new trial, the court will admit to bail. Ib. — Spalding, J. 

Sec. 13. Excessive bail shall not be required ; excessive 
fines shall not be imposed ; nor cruel and unusual punish- 
ments inflicted. ( See. Const. 1851, Art. 7, § 9.) 


Bailable 

offenses. 

Of the writ 
of habeas 
corpus. 


Of bail, fine 
and impris- 
onment. 


26 


CONSTITUTION OF OHIO, 1S02. 


Punishment 
to be pro- 
portioned to 
offense. 


Of insolvent 
debtors. 


Laws — ex 
post facto — 
relative to 
contracts — 
forfeiture of 
estate, &c. 


Sec. 14. All penalties shall be proportioned to the nature 
of the offense. No wise legislature will affix the same pun- 
ishment to the crimes of theft, forgery and the like, which 
they do to those of murder and treason. When the same 
undistinguished severity is exerted against all offenses, the 
people are led to forget the real distinction in the crimes 
themselves, and to commit the most flagrant, with as little 
compunction as they do the slightest offenses. For the same 
reasons, a multitude of sanguinary laws are both impolitic 
and unjust : the true design of all punishments being to 
reform, not to exterminate, mankind. 

Sec. 15. The person of a debtor, where there is not strong 
presumption of fraud, shall not be continued in prison, after 
delivering up his esiate for the benefit of his creditor or 
creditors, in such manner as shall be prescribed by law. (See 
Const. 1851, Art. I, § 15.) 

Sec. 16. No ex post facto law, (1) nor any law impairing 
the validity of contracts, shall ever be made; (2) and no con- 
viction shall work corruption of blood, or forfeiture of es- 
tate. (3) ( See Const. 1851, Art. II, § 28.) 

(1) Retrospective laws that violated no principle of natural justice, 
but that, on the contrary, were in furtherance of equity and good morals, 
were not forbidden by this Constitution. “ An act to provide for the 
settlement of the affairs of the Cuyahoga Falls Real Estate Associa- 
tion,” 43 Local Laws, 223, was such a law. Trus. City. F. R. E. A. v. 
McCaughy , 2 Ohio St., 152: approving Lewis v. McElvain, 16 Ohio, 347 ; 
Johnson v. Bentley, 16 Ohio, 97 ; Bartholemew v. Bently, 1 Ohio St., 37 ; 
Kearny v. Buttles, 1 Ohio St., 362. And see Hays v. Armstrong, 7 Ohio, 
1 pt. 248 ; Bates v. Lewis, 3 Ohio St., 459. 

A state may regulate contracts, and prescribe their form, effect and 
mode of discharge, and every contract, is supposed to be made with 
reference to the laws in force. But if an attempt should be made to 
give such laws a retrospective effect, the constitutional objection Would 
arise in all its force ; for the Legislature cannot disturb existing con- 
tracts or unsettle rights that have already become vested. Smith v. 
Parsons, 1 Ohio, 2&6 ; Bank of Utica v. Card, 7 Ohio, 2 pt. 170. 

A law which, by relation, retrospectively divests one of his pre- 
viously existing rights, is unconstitutional. Steamboat Monarch v. Fin- 
ley, 10 Ohio, 384. 

The act of 1835 (1 Curwen, 210), relating to defects in appeal bonds, 
was construed to extend to cases pending at the time of its passage. 
The provision was a remedial one, calculated to aid in the advancement 
of justice, and there was no constitutional objection to a construction 
of the act which would give it a retrospective operation. The appellee 
has no vested right in the forms of administering justice that precludes 
the Legislature from modifying them and better adapting them to effect 
their great ends and objects. The law touches no executed power. It 
does no more than confer jurisdiction in a case pending and undeter- 
mined, -where such jurisdiction would otherwise fail. Hays v. Arm- 
strong, 7 Ohio, 1 pt. 247. 

, The second section of the act passed January 29, 1833, amendatory 






































♦ 














CONSTITUTION OF OHIO, *802. 


27 


of the act providing for the acknowledgment of deeds, etc., is constitu- 
tional and of binding force, notwithstanding its retrospective operation. 
Barton v. Morris , 15 Ohio, 408. 

An assignment to a commissioner of insolvents in Ohio has no re- 
troactive effect, like that to bankrupt commissioners. Ennis v. Hulse, 
Wright’s Rep., 259. 

An act of the Legislature that divests vested rights and violates con- 
tracts, or that assumes to control or to exercise judicial powers, is un- 
constitutional and void. But the act of March 9, 1835, curing certain 
defects in the certificate of acknowledgment of deeds (1 Curwen, 240), 
was not liable to either of these objections, and was a valid law. For 
a confirmatory act, that merely assumed to cure an informality in the 
certificate of a magistrate, creating no new title and affecting no right 
but such as equitably flowed from the grantor — that merely accom- 
plished what upon principles of natural justice a court of chancery 
ought to decree — may have a retrospective operation when the mani- 
fest design of the Legislature was that it should thus operate. Chestnut 
v. Shane, 16 Ohio, 599 ; overruling Connell v. Connell, 6 Ohio, 358 ; Good 
v. Zercher, 12 Ohio, 364 ; Meddock v. Williams, 12 Ohio, 377 ; Silliman v. 
Cummings, 13 Ohio, 116. 

The third section of the act of March 19, 1850 (2 Curwen, 1578), pro- 
vides, “that 'whenever a defendant in any judgment or decree, or the 
surety or co-sureties of any such defendants, shall by mistake have di- 
rected any execution, issued on such judgment or decree, to be levied 
on any property not liable to such execution, and shall thereby have 
caused such judgment or decree to be wholly or in part satisfied, and 
shall have been compelled to pay the owner of such property therefor, 
he shall, in all actions now pending or hereafter instituted, be adjudged 
to have the same rights against any co-defendant in such judgment, 
and against any co-surety or principal in respect of the debt on which 
such is founded, as though such satisfaction had, by due process of 
law,, been out of the property of such defendant, surety or co-surety so 
directing said levy: Held, that the statute had not changed the law, 
but was declaratory of it; and that even if it had effected a change, 
the law in its application to cases pending sft the time of its passage, 
was not in contravention of the Constitution. Acheson v. Miller, 2 
Ohio St., 203-207. 

2. A law regulating judgments and executions cannot be considered 
as a law which enters into the nature of contracts, or which the par- 
ties have in view when they contract. A law which provided that 
judgment creditors, who had not sued out and levied execution wflthin 
one year from the date of judgment, lost their liens as against subse- 
quent judgment creditors, who had not sued out and levied execution 
wdthin one year, and which applied to judgments rendered as well be- 
fore as after the enactment of the law 7 , was held not to be unconstitu- 
tional as impairing vested rights, or changing the nature of the contract. 
McCormick v. Alexander , 2 Ohio, 65 ; Waymire v. Staley, 3 Ohio, 366. And 
see Corwin v. Benham, 2 Ohio St., 36. 

State insolvent laws discharging debtors from the debt upon surren- 
dering up all their property, are constitutional and valid as to contracts 


CONSTITUTION OF OHIO, 1802. 


made between citizens of the same state within its jurisdiction, after 
the law was enacted and in force. Smith v. Parsons, 1 Ohio, 236 ; Bank 
of Utica v. Card, 7 Ohio, pt. 2, 170. 

An act abolishing imprisonment for debt, and which operated to dis- 
charge a debtor confined on the prison limits before the act took effect, 
was not a law impairing the obligation of contracts, as it effected the 
remedy but not the contract. Parker v. Sterling, 10 Ohio, 357. 

The right to imprison constitutes no part of the contract, and a dis- 
charge of a party from imprisonment does not impair the obligation of 
the contract. Towscy v. Avery, 11 Ohio, 93. 

The act of the General Assembly of the state exacting toll upon 
passengers carried by mail stages on the Cumberland road, in Ohio, is 
constitutional. State, v. Neil, 7 Ohio, 1 pt., 132. But see same case on 
error, 3 Howard, Sup. Ct. U. S., 720, where it was held that the act was 
in violation of the compact between the state and the United States, 
under which the state took the road, and therefore void. 

Where a statute exempted forever certain lands of the Athens Uni- 
versity from taxation, and the same lands were afterwards sold by the 
University, a subsequent statute authorizing a tax to be levied on the 
lands, is not a violation of that clause of the Constitution of the United 
States which prohibits a state from passing any law impairing the obli- 
gations of contracts. Armstrong y. Treas. of Athens Co., 10 Ohio, 235. 

Where the state, by an act incorporating the Ohio University, vested 
in that institution two townships of land for the support of the Uni- 
versity and instruction of youth, and in the same act authorized the 
University to lease said lands for ninety-nine years, renewable forever, 
and provided that lands thus to be leased should forever thereafter be 
exempt from all state taxes, held : That the acceptance of such leases 
at a fixed rent or rate of purchase by the lessees constitutes a binding 
contract between the state and the lessees. And a subsequent act of 
the Legislature levying a state tax on such lands, is a “law impairing the 
obligation of contracts,” within the purview of the tenth section of the 
first article of the Constitution of the United States, and is, therefore, 
pro tanto, null and void. Matheny v. Golden, 5 Ohio St., 361. 

In respect to public corporations which exist only for public pur- 
poses — as counties, cities and towns — the Legislature, under proper 
limitations, have a right to change, modify, enlarge or restrain them. 
Marietta v. Fearing, 4 Ohio, 427. 

A license to practice a profession is not a contract which confers any 
vested privileges, but is liable to be modified in any manner which the 
public welfare may demand. Slate v. Gazlciy, 5 Ohio, 22. 

The law forfeiting tenants’ estate for non-payment of taxes is con- 
stitutional. McMillan v. Robbins, 5 Ohio, 28. 

A subsequent law, which undertakes to make valid a contract wholly 
void when made, is beyond the limits of just legislation, and in viola- 
tion of fundamental principles and constitutional rights. Johnson v. 
Bentley, 16 Ohio, 104. 

The act of March 5, 1842 (2 Curwen, 880), regulating the mode of col- 
lecting debts against turnpike companies, in which the state is a party, 
is not a law impairing the obligations of a contract, and is therefore 
constitutional. State v. Great M. T. Co., 14 Ohio, 405, 


























































. 




































































CONSTITUTION OF OHIO,' 1802. 


2 <) 


The provisions of the act of March, 1842, to regulate judicial pro- 
ceedings where hanks and bankers are parties, requiring the sheriff to 
receive bank-notes in satisfaction of execution in favor of a bank, etc., 
are not in contravention of this provision of this Constitution. Bank 
of Gallipolis v. Domigan, 12 Ohio, 220. 

The 26th section of the act amendatory of the tax la\v, which taxes 
rents reserved in leases for a term of fourteen years or upwards, renew- 
able, and chargeable qpon real property, which rents are to be assessed 
to the person entitled to receive the same, as personal property, at a 
principal sum the interest of which, at the legal rate per annum, shall 
produce a sum equal to such rents, is constitutional. Loving v. The 
State , 16 Ohio, 590. 

In 1845 the Legislature passed a general banking law, the fifty-ninth 
section of which required the officers to make semi-annual dividends, 
and the sixtieth required them to set off six per cent, of such divi- 
dends for the use of the state, which sum or amount so set off should 
be in lieu of all taxes to which the company, or the stockholders 
therein, would otherwise be subject. On March 21, 1851, an act was 
passed entitled “ An act to tax banks, and bank and other stocks, the 
same as property is now taxable by the laws of this state.” The opera- 
tion of this law r being to increase the tax, the question arose whether 
the latter act, as far as it applied to banks organized under the act of 
1845, was an act impairing the obligation of a contract, and in contra- 
vention of the tenth section of the first article of the Constitution of 
the United States. In a series of decisions — Mechanics' and Traders' 
Bank v. Debolt, 1 Ohio St., 591 ; Toledo Bank v. Bond, 1 Ohio St., 622 . 
Piqua Br. Bank v. Knoup, 1 Ohio St., 603 ; Sandusky City Bank v. WiV_ 
bur, 7 Ohio St., 481 ; Skelly v. Jefferson Branch J Bank, 9 Ohio St., 606 — it 
w T as held by the Supreme Court of the state that an ordinary charter 
was not a contract. But the Supreme Court of the United States re- 
versed those decisions in the cases of Piqua Br. Bank v. Knoup, 16 
Howard, 369 ; Dodge v. Woolsey, 18 Howard, 331 ; Mechanics' and Traders' 
Bank v. Debolt, 18 Howard, 380; Jefferson Branch Bank v. Shelly, 1 
Black, 436, holding that the charters of the banks were contracts fix- 
ing the amount of taxation, and not a law prescribing a rule of taxa- 
tion until changed by the Legislature. And therefore the act of 1851 
w T as unconstitutional. 

(3) The act of 1824 (2 Chase, 1362, l 14), in relation to the. forfeit- 
ure of estates for the non-payment of taxes, is constitutional. The 
constitutional provision against the forfeiture of estates has reference 
only to forfeitures incident to a conviction for crime. Nor is the stat- 
ute in any sense retrospective. McMillan v. Bobbins, 5 Ohio, 28. 

In England, the conviction of many offenses w r orks “ corruption of 
blood and forfeiture of estate.” The forfeiture is to the king. The 
blood is corrupted. : The attainted person can neither inherit from his 
ancestors, nor can he transmit inheritance. His property is not given 
to his heirs, but, by the forfeiture, is taken from them. The effects of 
the crime of the father are thus visited upon his children. It was 
against such a state of things that the Convention intended to provide. 
A man sentenced to imprisonment for life in the penitentiary, in pun- 


30 


CONSTITUTION OF OHIO,' 1802. 


Transporta- 
tion for 
crimes. 

Of recur- 
rence to tlie 
organic law. 

Of the right 
to assemble. 


Of bearing 
arms; stand- 
ing armies ; 
subordina- 
tion of mili- 
tary power. 


Corporal 
punishment 
under mili- 
tary rule. 

Of quarter- 
ing troops. 


Of poll tax. 


ishment for crime, is not civilly dead, and letters of administration 
cannot be granted on his estate. Frazer v. Fulcher , 17 Ohio, 2C0. 

Sec. 17. That no person shall be liable to be transported 
out of this state, for any offense committed within the 
state. ( See Const. 1851, Art. I, § 12.) 

Sec. 18. That a frequent recurrence to the fundamental 
principles of civil government, is absolutely necessary to 
preserve the blessings of liberty. 

Sec. 19. That the people have a right to assemble to- 
gether, in a peaceable manner, to consult for their common 
good, to instruct their representatives, and to apply to the 
legislature for a redress of grievances. ( See Const. 1851, Art. 

J, § 3.) 

Sec. 20. That the people have a right to bear arms for 
the defense of themselves and the state : and as standing 
armies in time of peace, are dangerous to liberty, they shall 
not be kept up; and that the military shall be kept un- 
der strict subordination to the civil power. ( See Const. 1851, 
Art. /, § 4. 

The military in all governments is an arm of the executive de- 
partment, and not a distinct department. State v. Coulter, Wright’s 
Rep., 421. 

Where a body of militia performs their evolutions with martial 
music and firing, so near the court-house as to interrupt or suspend 
the business of the court, the officers may be proceeded against for a 
contempt, if they refuse to desist on request. Ib. ; and Stale v. Goff, 
Wright’s Rep., 78. 

Sec. 21. That no person in this state, except such as are 
employed in the army or navy of the United State, or militia 
in actual service, shall be subject to corporal punishment 
under the military law. 

Sec. 22. That no soldier, in time of peace, be quartered 
in any house without the consent of the owner; nor in time 
of war, but in the manner prescribed by law. ( See Const. 
1851, Art. J, § 13.) 

Sec. 23. That the levying taxes by the poll is grievous 
and oppressive ; therefore, the legislature shall never levy a 
poll tax for county or state purposes. ( See Const. 1851, Art. 

| g A tax assessed upon the members of a profession, upon account 
of their practice, is constitutional, being not a poll but a faculty tax, 
and may be legally assessed by the judicial tribunals. State v. Gazlay , 
5 Ohio, 14 ; State v. Hibbard , 3 Ohio, 63. 

A city ordinance requiring a reasonable sum from draymen, by way 
of excise on their special employment, w r as held not to be unlawful. 
Cincinnati v. Bryson, 15 Ohio, 625. 

So with an ordinance requiring twenty-five cents from persons occu- 
pying stalls in the market-place. Cincinnati v. Buckingham, 10 Ohio, 
257. 












CONSTITUTION OF OHIO, 1802 . 


31 


Sec. 24. That no hereditary emoluments, privileges or 
honors, shall ever be granted or conferred by this state. 
{See Const. 1851, Art. 7, § 17.) 

Sec. 25. That no law shall be passed to prevent the poor 
in the several counties and townships within this state from 
an equal participation in the schools, academies, colleges 
and universities within this state, which are endowed, in 
whole or in part, from the revenue arising from donations 
made by the United States, for the support of schools and 
colleges; and the doors of the said schools, academies and 
universities, shall be open for the reception of scholars, 
students and teachers, of every grade, without any distinc- 
tion or preference whatever, contrary to the intent for which 
said donations were made. 

The act of February 20th, 1849 (2 Curwen, 1469), to authorize the 
establishment of separate schools for the education of colored children, 
and for other purposes, is constitutional. The whole subject of organ- 
izing and regulating schools is very properly left to the General Assem- 
bly in the exercise of its legislative powers, and, as a matter of policy, 
it is unquestionably better that the white and colored youths should 
be placed in separate schools, and that the school fund should be di- 
vided to them in proportion to their numbers. State v. Cincinnati, 19 
Ocdo, 178. 


Sec. 26. That laws shall be passed by the legislature, 
which shall secure to each and every denomination of relig- 
ious societies, in each surveyed township which no\v is, or 
may hereafter be formed in the state, an equal participation, 
according to their number of adherents, (1) of the profits 
arising from the land grante'd by congress, for the support 
of religion, agreeably to the ordinance or act of congress, 
making the appropriation. 

(1) The sect claiming must have formed themselves into a society, 
and must have given themselves a name. It is not enough that there 
are individuals who are members of Christian churches residing within 
the township. A society must be actually formed and known by name. 
It is not necessary that the individuals should be citizens in order to 
be adherents to a religious society. State v.« Trustees, etc., 11 Ohio, 24. 

Sec. 27. That every association of persons, when regu- 
larly formed, within this state, and having given them- 
selves a name, may, on application to the legislature, be 
entitled to receive letters of incorporation, to enable them 
to hold estates, real and personal, for the support of their 
schools, academies, colleges, universities, and for other pur- 
poses. 

Sec. 28. To guard against the transgression of the high 
powers which we have delegated, we declare, that all powers 
not hereby delegated, remain with the people. ( See Const. 
1851, Art. I, § 20.) 


Hereditary 

privileges," 

etc. 

Of schools 
and poor 
children. 


Disposition 
of proceeds 
of sec. 29. 


Incorpora- 
tion of liter- 
ary societies. 


Powers re- 
served to the 
people. 


32 


CONSTITUTION OF OHIO, 1802. 


Of former 
suits and 
claims. 


Of former 
fines and 
official 
bonds. 


Of former 
officers. 


Of prior 
laws. 


Temporary 
state seal. 
The first 
election. 


The first ap- 
portionment 
of represent- 
ation. 


SCHEDULE. 

Sec. 1. That no evils or inconveniencies may arise, from 
the change of a territorial government to a permanent state 
government, it is declared by this convention, that all rights, 
suits, actions, prosecutions, claims and contracts, both as it 
respects individuals and bodies corporate, shall continue, as 
if no change had taken place in this government. (See 
Const. 1851, ''ched. § 1.) 

Sec. 2. All fiiies, penalties and forfeitures, due and ow- 
ing to the territory of the United States, north-west of the 
river Ohio, shall inure to the use of the state. All bonds 
executed to the governor, or any other officer in his official 
capacity, in the territory, shall pass over to the governor or 
the other officers of the state, and their successors in office, 
for the use of the state, or by him or them to be respectively 
assigned over to the use of those concerned, as the case 
may be. 

Sec. 3. The governor, secretary and judges, and all other 
officers under the territorial government, shall continue in 
the exercise of the duties of their respective departments, 
until the sa4d officers are superseded under the authority of 
this constitution. (See Const. 1851, Sched. § 10.) 

Sec. 4. All laws, and parts of laws, now in force in this 
territory, not inconsistent with this constitution, shall con- 
tinue and remain in full effect, until repealed by the legis- 
lature, except so much of the act, entitled an “ Act regulat- 
ing the admission and practice of attorneys and counselors 
at law,” and of the act made amendatory thereto, as relates 
to the term of time which the applicant shall have studied 
law, his residence within the territory, and the term of time 
which he shall have practiced as an attorney at law, before 
he can be admitted to the degree of a counselor at law. 
(See Const. 1851, Sched. § 1.) 

Sec. 5. The governor of the state shall make use of his 
private seal, until a state seal be procured. 

Sec. 6. The president of the convention shall issue w r rits 
of election to the sheriffs of the several counties, requiring 
them to proceed to the election of a governor, members of 
the general assembly, sheriffs and coroners, at the respective 
election districts in each county, on the second Tuesday of 
January next ; which elections shall be conducted in the 
manner prescribed by the existing election laws of this ter- 
ritory : and the members of the general assembly, then 
elected, shall continue to exercise the duties of their respect- 
ive offices until the next annual or biennial election there- 
after, as prescribed in this constitution, and no longer. 

Sec. 7. U ntil the first enumeration shall be made, as direct- 
ed in the second section of the first, article of this constitu- 
tion, the county of Hamilton shall be entitled to four sena- 
tors and eight representatives ; the county of Clermont, one 
senator and two representatives ; the county of Adams, one 
senator and three representatives ; the county of Ross, two 
senators and four representatives ; the county of Fairfield, 




































' 
































































































































































































































- 
























CONSTITUTION OF OHIO, 1802 . 


33 


one senator and two representatives; the county of Wash- 
ington, two senators and three representatives ; the county 
of Belmont, one senator and two representatives ; the county 
of Jefferson, two senators and four representatives; and the 
county of Trumbull, one senator and two representatives. 

Done in convention, at Chillicothe, the 29th day of Novem- 
ber, in the year of our Lord one thousand eight hundred and 
two, and of the independence of the United States of America 
the twenty-seventh. 

In testimony whereof, we have hereunto subscribed our 
names. 

Edward Tiffin, President , 

and Representative from the county of Ross. 


.Joseph Darlington, 
Israel Donalson, 
Thomas Kirker, 

James Caldwell, 
Elijah Woods, 

Philip Gatch, 

James Sargent, 

Henry Abrams, 
Emanuel Carpenter, 


Rudolph Bair, 

George Humphrey, 
John Milligan, 
Nathan Updegraff, 
Bazaleel Wells, 

Michael Baldwin, 
James Grubb, 
Nathaniel Massie, 
Thomas Worthington, 


| Adams county. 

j Belmont county. 
Clermont county. 
Fairfield county. 


Hamilton county. 


-Jefferson county, 
j- Ross county. 


John W. Browne, ^ 
Charles Willing Byrd, 
Francis Dunlavy, 
William Goforth, 

John Kitchel, 

Jeremiah Morrow, 

John Paul, 

John Reily, 

John Smith, 

John Wilson, 


David Abbott, 
Samuel Huntington, 


| Trumbull county. 


Ephraim Cutler, 
Benjamin Ives Gilman, 
John McIntyre, 

Rufus Putnam, 

Attest : 

Thomas Scott, Sec'y. 

3 


^Washington county. 


CONSTITUTION OF THE STATE OF OHIO 


Right to 
freedom and 
protection of 
property. 


(ADOPTED A. D. 1851.) 


We, the people of the State of Ohio, (1) grateful to Almighty 
Ood for our freedom, to secure its blessings and promote our 
common welfare, do establish this Constitution. 

(1) For original boundary lines of Ohio, see act of Congress approved 
April 30, 1802. 1 Chase, 70. 

For a complete history of the question of boundary between Ohio 
and Michigan, see Daniels v. Stevens, 1>9 Ohio, 239 ; Myers v. Manhattan 
Bank, 20 Ohio, 283. 

In Booth v. Hubbard, 8 Ohio St., 243, it was held, that the territorial 
limits of this State extend on the south-east, at least to the line of 
ordinary low water-mark on the north-west side of the Ohio River. 
The court said : “It does not become necessary, in this case, to de- 
termine whether the middle of the Ohio River, the filum medium aquae, 
does or does not constitute the boundary line between the States of 
Virginia and Ohio.” Page 245. 

However it may be as to our boundary, so far as territory is concerned, 
it seems that as to navigation and authority with respect to matters 
civil and criminal, Ohio has jurisdiction concurrent with Virginia and 
Kentucky over the entire river, along the borders of those states. The 
question was much considered in the commission that grew out of 
what is known as the Parkersburg case ; and full abstracts of the argu- 
ments will be found in the Western Law Journal, vol. 4, pp. 145-164 ; 
vol. 5, pp. 433-437. See also Eckerts v. Colvin, 1 West. Law Jour., 54 — 
Wood and Read, JJ. ; Ohio v. Stephens, 2 West. Law Jour., 66; s. c. in 
error, 14 Ohio, 386 ; 3 West. Law Jour., 310, 337 ; McCullock v. Aten, 
2 Ohio, 308 ; Benner v. Platter, 6 Ohio, 505 ; Blanchard v. Porter, 1 1 
Ohio, 138. See Const. 1802, Art. VII, § 6. 

2 Debates, 231, 326, 826, 856, 870. 

ARTICLE I. 

BILL OF BIGHTS* 

Section 1. All men are, by nature, free (1) and independ- 
ent, and have certain inalienable rights, among which are 
those of enjoying and defending (2) life and liberty, acquir- 
ing, possessing, and protecting property, (3) and seeking and 
obtaining happiness and safety* ( See Const . 1802, Art. VIII, 
§!•) 

(1) The presumption is that every person in the state, whether a cit- 
izen or not, comes within the provision. Birney v. State, 8 Ohio, 230-238. 
“The absolute and equal freedom of all persons at birth is a funda- 












CONSTITUTION OF OHIO, 1851. 


35 


mental principle of American institutions, proclaimed with independ- 
ence and incapable of abrogation. This principle was, by the Ordinance 
of 1787, impressed on the soil of Ohio, before there was an organized 
community within her limits ; it is fundamental in her organization ; 
always embodied in her Constitution ; and her laws, her policy, and 
the convictions, the morals, and the religion of her people are instinct 
with its spirit.” Anderson v. Poindexter , 6 Ohio St., 622-634 — Brinker- 
hoff, J. 

(2) u It is urged that the law in Ohio is, that a person assailed may 

in all cases, without retreating, take his assailant’s life, if he reasonably 
believe it necessary to do so in order to save his own life, or to avoid 
great bodily harm, and this, although he could, without increasing his 
danger, retire, and thereby escape all necessity of slaying his adver- 
sary. As to what is the precise state of the law on this subject, there 
is some diversity of opinion among the members of this court, and 
therefore, without attempting at this time to lay it down, we prefer to 
dispose of the case upon a view which is satisfactory to us all. . . . 

Whether a person assaulted is of is not bound to quit the combat, if 
he can safely do so, before taking life, it will not be denied that, in 
order to justify the homicide, he must, at least, reasonably apprehend 
the loss of his own life or great bodily harm, to prevent -which, and 
under a real or supposed necessity, the fatal blow’ must be given. And 
again, the combat must not have been of his own seeking, and he must 
not have put himself in the way of being assaulted, in order that 
when assaulted and hard pressed he might take the life of his assail- 
ant.” Stewart v. State, 1 Ohio St., 66-72 — Thurman, J. 

With respect to the service, beyond the limits of Ohio, of a writ issued 
by a justice of the peace, the court said : “ No legal or moral obliga- 

tion required the constable to attempt its execution in Indiana, and an 
arrest made upon it there, was a violation of both public and private 
rights. Services rendered under such circumstances are both volun- 
tary and -without authority of law.” Smith v. Portage Co., 9 Ohio, 25-28 
— Wood, J. 

Whether jurisdiction acquired over the person by bringing the party 
within our territorial limits, forcibly or fraudulently, can be maintained, 
see ex parte Everts, 2 Disney’s Rep. ; Gill v. Miner, 13 Ohio St., 182, and 
cases there cited. 

(3) “ When the nature of the question, and the history of the rulings 
on the subject of defending person and property, which have illustrated 
the advancement of the common law from rude and barbarous to re- 
fined and enlightened civilization, are clearly taken into view, we shall 
find the reasoning of Justice Redfield altogether safe, and exactly in 
harmony with the system of government and society to which it is 
applied. It is well settled, says the Justice (in State v. Downer, 8 Ver- 
mont, 424), that one may defend the possession of his property against 
a stranger with such force as may be necessary. But this right cannot 
be extended to the case of an officer, whose duty it is to attach property 
w henever he is requested so to do. He may or may not require in- 
demnity for the act. But it would be too much to say that he must 
decide all questions of doubtful property at his own hazard, or that if 
he attempted to make an attachment when the property was not, in 


CONSTITUTION OF OHIO, 1851. 


;u> 


Right to 
alter, reform 
or abolish 
government, 
and repeal 
special 
privileges. 


Of the right 
to assemble. 


Of bearing 
arms; stand- 
ing armies ; 
subordina- 
tion of mili- 
itary power. 


fact, in the debtor, he might, by the owner of the property, be resisted 

to any extremity It must be familiar to all, that 

while the tendency of the best and highest American decisions, as w r ell 
as the very genius of our government, are favorable to an increased re- 
gard for the sanctity of the person, by the same law many measures 
of defense as to property have become obsolete and shocking to the 
enlightened humanity of the day. If the rule that one must retreat 
to the wall before killing his assailant has passed away, so has the day 

of man-traps and spring-guns We hold, then, the 

better and safer and only practicable rule to be, that whenever the 
question of property is so doubtful that the creditor and officer may be 
supposed to act, and do act, in good faith, and on reasonable grounds 
for believing the property to be that of the debtor, the owner has no 
right to resist the execution or attachment by a breach of the peace.” 
Again : “ The conversion of an execution into an alias writ cannot affect 
the protection due to the constable to whom it was delivered. . . . 

It was irregular, but not void.” Fans v. State, 3 Ohio St., 159-166, 168 — 
Warden, J. 

2 Debates, 231, 326, 806, 826, 856, 870. 

Sec. 2. All political power is inherent in the people. (1) 
Government is instituted for their equal protection and 
benefit, and they have the right to alter, reform, or abolish 
the same, whenever they may deem it necessary ; and no 
special privileges or immunities shall ever be granted, 
that may not be altered, revoked, or repealed by the general 
assembly. ( See Const. 1802, Art. VIII , § 1.) 

(1) “ The Constitution apportions political pow r er among the inhab- 
itants of the state as nearly equally as possible, in proportion to num- 
bers, without any regard whatever to property, or indeed to any other 
circumstance. Inhabitants alone are represented : a given number in 
one place exercise the same political power as a like number in any 
other locality.” State v. Dudley , 1 Ohio St., 437-442 — Ranney, J. 

2 Debates, 231, 326, 466-468, 476-483, 485-493, 498-550, 556-559, 688- 
693, 806, 826 856„ 870. 

Sec. 3. The people have the right to assemble together, 
in a peaceable manner, to consult for their common good ; to 
instruct their representatives ; and to petition the general 
assembly for the redress of grievances. (See Const. 1802, Art. 
VIII , § 19.) 

The Legislature, from an early day, has exercised the power of regu- 
lating the mode of petitioning, what the petition shall contain, the 
time it may be in circulation, and the notice thereof that must be 
given. 1 Swan & Critchfield, 919. 

2 Debates, 231, 326, 462, 806, 826, 856, 870. 

Sec. 4. The people have the right to bear arms for their 
defense and security; but standing armies, in time of peace, 
are dangerous to liberty, and shall not be kept up ; and the 
military shall be in strict subordination to the civil power 
(See Const. 1802, Art. VIII , § 20.) 




























CONSTITUTION OF OHIO, 1851. 


37 


Where a body of militia perform their evolutions, with martial 
music and firing, so near the court-house as to interrupt or suspend 
the business of the court, the officers may be proceeded against for a 
contempt, if they refuse to desist on request. State v. Coulter , Wright’s 
Rep., 421 ; State v. Goff , lb., 78. 

In the first of these cases the court said : “ This clause in the Con- 
stitution clearly shows the light in which the framers of this instru- 
ment view r ed a resort to mercenary troops in any degree independent 
of the civil authority. They held such a force dangerous to liberty, 
and that unalterably and forever to regard it so, was a great and essen- 
tial principle of liberty and free government. The determination was 
to constitute the militia, as only a portion of the executive authority, 
upon whom was devolved the duty of executing the laws and protect- 
ing its ministers from violence. It is declared a duty equally essential 
to liberty to regard even the militia a military force, to be forever kept 
under strict subordination to the civil authority. The fathers of the 
Republic had studied human nature deeply. Devoted to free institu- 
tions, they were jealous of any influence tending to their destruction. 

Hence the emphatic annunciation of the essential principle, that the mili- 
tary should be kept under strict subordination to the civil authority. Not 
a word is found in the Constitution giving countenance to the opinion 
sometfmes expressed, and more frequently felt, that the militia or the 
military force, instead of being a means to be employed by the execu- 
tive department in executing the important duty of executing the 
law r s, are a distinct department of the government, equal to either of 
the others, and independent of their control.” 424, 425 — Wood and 
Wright, JJ. 

2 Debates, 231, 326, 462, 806, 826, 856, 870. 

Trial bv 

Sec. 5. The right of trial by jury shall be inviolate. i U rv 
(See Const . 1802, Art. VIII , § 8.) 

A jury is defined to be “a convenient number of citizens, selected 
and impartial, who, on particular occasions, or in particular causes, are 
vested with discretionary powers to try the truth of facts, on which 
depend the property, the liberty, the reputation and the lives of their 
fellow citizens.” It is “ a certain number of men sworn to inquire of 
and try a matter of fact, and declare the truth upon such evidence as 
shall be given them in a cause ; and they are sw r orn judges upon evi- 
dence in matters of fact.” “ The occupying claimant laws of Ohio came 
under the consideration of the Supreme Court in the case of the Bank 
of Hamilton v. Dudley , 2 Peters, 133. In that case the court concede 
that the state has the power to secure to claimants of lands their pos- 
sessions until paid for lasting improvements made by them on the 
land, but denies the power of the state, by its enactments, to ‘ change, 
radically, the mode of proceeding prescribed for the courts of the Uni- 
ted States, or direct those courts, in a trial at common law, to appoint 
commissioners for the decision of questions which a court of common 
law must submit to a jury.’ Such a proceeding, the court suppose, 
would conflict with the clause in the Constitution of the United States, 
which declares that ‘ in suits at common law, where the value in con- 
troversy shall exceed twenty dollars, the right of trial by jury shall be 


CONSTITUTION OF OHIO, 1851. 


preserved.’ It appears to us obvious that the provision of the Consti- 
tution just quoted, applies only to the courts of the United States, and 
does not prescribe a rule of practice for the courts of a state. . . . 
Indeed, we are unable to discover wherein the law of Ohio conflicts 
with the Constitution of Ohio. Were we to decide otherwise, there is 
a series of legislative acts, commencing with the organization of our 
government and continuing to this time, that we should be compelled 
to declare void. We allude to enactments providing juries in cases of 
forcible entry and detainer, for the trial of the rights of property, 
. . . for inquiry in cases of idiocy and lunacy,” etc. Hunt v. 
McMahan, 5 Ohio, 132-135 — Wright, J. 

“The only way in which we can ascertain the true meaning of this 
clause, is by making inquiry whether, before the Constitution was 
framed, jury trial was known in such cases in the Territory of Ohio. 
. . . On what principle is it that juries are dispensed w r ith in the 
greater number of our courts— in courts of equity, courts of admiralty, 
courts martial and courts of justices of the peace ? Magna Charta de- 
clares that no man shall be deprived of life, liberty or property, but 
by the judgment of his peers or the law of the land. Mr. Sullivan 
(i$ 39, 40) remarks that, as juries were unknown in those courts before 
the great charter, their disuse constituted a part of the law of the land ; 
and therefore, although the charter was the first great instrument 
which solemnly guaranteed jury trial to Englishmen, yet it has never 
been supposed that that institution constituted a part of the machinery 
of those courts. . . . He who will take the trouble to examine our 

laws, as well before as since the formation of our A Constitution, will find 
that they are uniformly regarded as an appendage to the courts only. 
No juries are ever mentioned but such as are auxiliary to the adminis-? 
tration of justice in some court. . . . Objections of this kind should 
ever be listened to with attention and earnestness ; for, although, to 
decide upon the constitutionality of a law, is a duty which no judge 
should court, yet it is also one from which no judge should shrink.” 
Willyard v. Hamilton, 7 Ohio, 2 pt., 111-118 — Grimke, J. 

“By the first of these sections (§ 5) the right of trial by jury is recog- 
nized to exist, and its continuance unimpeached is provided for. By 
the last (g 10) this right is declared to belong to every person accused 
of any crime or offense, in any court of the state. What, then, is this 
right? It is nowhere defined or described in the Constitution. It is 
spoken of as something already sufficiently understood, and referred to 
as a matter already familiar to the public mind. The same article 
furnishes other examples of the same generality of expression. . . . 

If ages of uninterrupted use can give significance to language, the 
right of jury trial and the habeas corpus stand as representatives of 
ideas as certain and definite as any other in the whole range of legal 
learning. The institution of the jury referred to in our Constitution, 
and its benefits secured to every person accused of crime, is precisely 
the same, in every substantial respect, as that recognized in the great 
charter, and its benefits secured to the freemen of England, and again 
arid again acknowledged in fundamental compacts as the great safe- 
guard of life, liberty and property ; the same brought to this country 
by our forefathers, and perseveringly claimed as their birthright in 































CONSTITUTION OF OHIO, 1851. 


39 


every contest with arbitrary power ; and, finally, an invasion of its privi- 
leges prominently assigned as one of the causes which was to jus- 
tify them in the eyes of mankind in waging the contest which resulted 
in independence. . . . We do not intend to imply a doubt of the 
constitutionality of the act allowing juries before justices of the peace, 
composed of six men. Wherever facts are to be found in any proceed- 
ing, in which a jury was not required by the common law, a jury of 
any number may be authorized, within the discretion of the legislative 
body. Juries did not belong to these inferior courts at the common 
law ; and so long as an appeal is provided for to the common law' courts 
from their determination, it is clear no constitutional objection can 
arise, whether facts are found by the magistrate, or by the aid of a jury 
of any number of men.” Work v. State, 2 Ohio St., 296-302 — Banney, 
J. ; Norton v. Me Leary, 8 Ohio St., 209. 

It is beyond the power of the General Assembly to impair the right 
or materially vary its character. The number of jurors cannot be 
diminished, or a verdict authorized short of a unanimous concurrence 
of all the jurors. It follows that the act of March 14, 1853, “ defining 
the jurisdiction and regulating the practice of probate courts ” (51 0. 
L., 167 ; S. & C., 1212), in so far as it provides for a jury of six only, 
and authorizes a conviction upon their finding, is unconstitutional and 
void. Work v. State, 2 Ohio St., 296. But the act of May 1, 1854, “ to 
extend the jurisdiction of justices of the peace,” etc. (52 0. L., 100 ; 
S. & C., 770), is not unconstitutional, although it makes no provision 
for the trial, by a jury of twelve men, of actions commenced in virtue 
of such extended jurisdiction. Norton v. McLeary, 8 Ohio St., 205. “It 
is true that the act may subject the defendant to atrial, before a justice 
of the peace, before he can obtain a trial by jury ; still the right of 
trial by jury remains unimpaired and perfect. The mode of obtaining 
it may be more inconvenient than heretofore. But on this subject a 
discretion is given to the Legislature, which must be so far abused as 
to be clearly violative of the substantial right, before this court can in- 
terfere to nullify legislative action.” Ib., 209 — Scott, J. ; See also Reck- 
ner v. Warner, 22 Ohio St., 275 — Mcllvaine, J. 

In an action for the recovery of money, wherein the only relief prayed 
for is a money judgment, either party is entitled to demand a trial by 
jury, notwithstanding numerous items of account or of claim and coun- 
ter-claim are involved in the issue. Averill Coal and Oil Co. v. Verner, 
22 Ohio St., 372. Ib. 

In such action the defendant, though in default of answer, is entitled 
under section 598 of the code to demand a jury to assess damages. And 
if it be irregular in such case for the court to make an order (on the 
motion of the plaintiff and against the objection of defendant) refer- 
ring the cause to a referee for trial, and granting leave to defendant to 
answer generally, at a future day, such irregularity is cured if the de- 
fendant, after answer is filed, appear before the referee, and, without 
protest or objection to his jurisdiction, submit his cause to him upon 
the issues and proofs. 

See Art. I, § 10, Note 5 ; Art. I, \ 19, Note 7 ; Art. XIII, § 5, Note 6. 

2 Debates, 231, 326, 327, 462, 806, 826, 857, 870. 


40 


CONSTITUTION OF OHIO, 1851. 


Of slavery 
and involun- 
tary servi- 
tude. 

Of the rights 
of con- 
science. 


The neces- 
sity of relig- 
ion and 
knowledge. 


Sec. 6. There shall be no slavery in this state ; nor in- 
voluntary servitude, unless for the punishment of crime. 
(■ See Const. 1802, Art. VIII , § 2.) 

2 Debates, 231, 327, 806, 826, 857, 870. 

Sec. 7. All persons have a natural and indefeasible right 
to worship Almighty God according to the dictates of their 
own conscience. No person shall be compelled to attend, 
erect, or support any place of worship, or maintain any form 
of worship, against his consent ; and no preference shall be 
given, by law, to any religious society ; nor shall any inter- 
ference with the rights of conscience be permitted. (1) No 
religious test shall be required, as a qualification for office, 
nor shall any person be incompetent to be a witness on ac- 
count of his religious belief; but nothing herein shall be 
construed to dispense with oaths and affirmations. Religion , 
morality, and knowledge, however, being essential to good 
government, it shall be the duty of the general assembly to 
pass suitable laws, to protect every religious denomination 
in the peaceable enjoyment of its own mode of public worship, 
and to encourage schools and the means of instruction. (2) 
(. See Const. 1802, Art. VIII , § 3, 25.) 

(1) “ Neither Christianity nor any other system of religion is a part 

of the law of this state. We sometimes hear it said that all religions 
are tolerated in Ohio; but the expression is not strictly accurate; 
much less accurate is it to say that one religion is a part of our law, 
and all others only tolerated. It is not by mere toleration that every 
individual here is protected in his belief or disbelief. He reposes not 
upon the leniency of government, or the liberality of any class or sect 
of men, but upon his natural, indefeasible rights of conscience, which , 
in the language of the Constitution, are beyond the control or inter- 
ference of any human authority. We have no union of church and 
state, nor has our government ever been vested with authority to en- 
force any religious observance simply because it is religious. Of course 
it is no objection, but, on the contrary, is a high recommendation to a 
legislative enactment, based upon justice or public policy, that it is found 
to coincide with the preoepts of a pure religion ; but the fact is neverthe- 
less true, that the powder to make the law rests in the legislative control 
over things temporal, and not over things spiritual. Thus, the statute 
prohibiting common labor on the Sabbath (1 Curw T en, 208 ; S. & C., 447), 
could not stand for a moment as the law of this state, if its sole foun- 
dation was the Christian duty of keeping that day holy, and its sole 
motive to enforce the observance of that duty. For no power over 
things merely spiritual has ever been delegated to the government, 
while any preference of one religion over'another, as the statute would 
give upon the above hypothesis, is directly prohibited by the Consti- 
tution. Acts evil in their nature, or dangerous to the public welfare, 
may be forbidden and punished, though sanctioned by one religion 
and prohibited by another ; but this creates no preference whatever, 
for they would be equally forbidden and punished if all religions per- 
mitted them. Thus, no plea of his religion could shield a murderer, 
ravisher or bigamist; for community would be at the mercy of super- 





















































CONSTITUTION OF OHIO, 3851. 


41 


stition, if such crimes as these could be committed with impunity, 
because sanctioned by some religious delusion.” Bloom v. Richards , 
2 Ohio St., 387-390— Thurman, J. ; McGattrick v. Wason, 4 Ohio St., 566. 

“The statute prohibiting common labor on the Sabbath is to be 
regarded as a mere municipal or police regulation, whose validity is 
neither strengthened nor weakened by the fact thatdhe day of rest it 
enjoins is the Sabbath day. Wisdom requires that men should refrain 
from labor at least one day in seven, and the advantages of having the 
day of rest fixed, and so fixed as to happen at regularly recurring in- 
tervals, are too obvious to be overlooked. It was within the constitu- 
tional competency of the General Assembly to require this cessation of 
labor and to name the day of rest. It did so by the act referred to, 
and, in accordance with the feelings of a majority of the people, the 
Christian Sabbath was very properly selected. But, regarded merely as 
an exertion of legislative authority, the act would have had neither more 
nor less validity had any other day been adopted.” Ib., 391 ; Sellers v- 
Dugan, 18 Ohio, 489-490 — Avery, J. 

(2) “ The system of public education in Ohio is the creature of the 

Constitution and statutory laws of the State. It is left to the discre- 
tion of the General Assembly, in the exercise of the general legislative 
power conferred upon it (Art. II, § 1), to determine what laws are “ suit- 
able ” to secure the organization and management of the contemplated 
system of common schools, without express restriction, except that 
‘ no religious or other sect or sects shall ever have any exclusive right 
to, or control of, any part of the school funds of this State.’ ” (Art. 
VI, § 2.) State v. McCann, 21 Ohio St., 198-205 — Day, J. 

Under the Constitution and laws of the state, the right to classify 
the youth of the state for school purposes, on the basis of color, and 
to assign them to separate schools for education, both upon well 
recognized legal principles and repeated adjudications, is too firmly 
established to be now judicially disturbed, lb., 208 ; State v. City of Cin- 
cinnati, 19 Ohio, 178 ; Van Camp v. Board of Education of Logan, 9 Ohio 
St., 406. 

2 Debates, 231, 327, 328, 462, 463, 466, 469, 806, 826, 857, 870. 

Sec. 8. The privilege of the writ of habeas corpus shall 
not be suspended, unless, in cases of rebellion or invasion, 
the public safety require it. ( See Const. 1802, Art. VIII , § 12.) 

“ In what does the privilege of this great bulwark of personal liberty 
consist ? The Constitution furnishes no answer, nor was it necessary 
that it should. If ages of uninterrupted use can give significance to 
language, the right of jury trial and the habeas corpus stand as repre- 
sentatives of ideas as certain and definite as any other in the whole 
range of legal learning.” Work v. State, 2 Ohio St., 296-302 — Ranney, J. 

“The privilege of the writ of habeas corpus is secured by our 
national and state constitutions to every citizen. It can only be sus- 
pended or withheld in cases of rebellion or invasion, when the public 
safety may require it. Subject to that reserved right of the national 
or state governments, to be employed in the extreme cases named, 
each citizen is vested with this ancient and sacred shield of liberty. 
To the judicial department of the government is delegated the duty 


Of the writ 
of habeas 
corpus. 


42 


CONSTITUTION OF OHIO, 1851. 


of enforcing applications for its invaluable benefits, when properly 
demanded. Our statute relating to the subject gives to the judges of 
the courts, separately, at chambers, jurisdiction of the subject-matter 
in all cases, except when the person is convicted of a crime or offense, 
and stands committed for it ; or where he is committed for treason or 
felony, the punishment whereof is capital, plainly expressed in the 
warrant of commitment. Not only is such jurisdiction given to the 
judges, but when the person who is unlawfully deprived of his liberty, 
makes his application to one of them, as provided in the law, for the 
benefits of the writ, it is made the duty of such judge forthwith to issue 
it. The exempted cases of convicted persons who stand committed, 
and of treason or felony, punishable capitally, are the only restrictions 
upon the power of a single judge. The common law courts are clothed 
with power adequate for those and for all other cases which may arise. 
In the exercise of this power by a single judge, or a court, every case 
of unlawful imprisonment maybe reached and examined into. ‘No 
matter where or how the chains of captivity were forged, the power of 
the judiciary, in this state, is adequate to crumble them to the dust, if 
an individual is deprived of his liberty, contrary to the law of the 
land.’ ” Ex parte Collier , 6 Ohio St., 55-58, 59 — Bowen, J. 

If a court, having jurisdiction of an offense punishable by a valid 
and constitutional law, pronounces sentence, and the commitment 
under that sentence is returned on habeas corpus, the form of the 
indictment, or the want of proper allegations therein, cannot be in- 
quired •into, nor can the previous proceedings of the court be revised 
and reviewed ; for this process cannot be converted into a writ of 
error. In such case the court, having jurisdiction over the offense, 
must itself pronounce the law of the case, and, until reversed by some 
competent tribunal, is conclusive on all other courts, and puts an end 
to all collateral inquiry on habeas corpus. Hence it is that the statute 
itself, relating to this writ, excepts from those who are entitled to the 
benefit of it, all persons convicted of a crime or offense for which they 
stand committed, plainly and specifically expressed in the warrant of 
committment.” Ex parte Shaw, 7 Ohio St., 81 ; ex parte Bushnell; ex parte 
Langston, 9 Ohio St., 77-183 — Swan, C. J. 

Where the court erroneously refuses to grant an order of discharge, 
and instead thereof remands the prisoner to jail, and continues the 
cause, the order remanding the prisoner to jail, so long as it remains 
unreversed, is a valid and legal authority to the sheriff for retaining 
the prisoner in custody, and the order cannot be reviewed and reversed, 
or the prisoner discharged, by a proceeding in habeas corpus before 
another tribunal. Ex parte McGehan, 22 Ohio St., 442. 

2 Debates, 231, 328, 806, 826, 857, 870. 


Bailable of- 
fenses. 

Of bail, fine 
and punish- 
ment. 


Sec. 9. All persons shall be bailable by sufficient sure- 
ties, except for capital offenses where the proof is evident, 
or the presumption great. Excessive bail shall not be re- 
quired ; nor excessive fines imposed ; nor cruel and unusual 
punishments inflicted. ( See Const. 1802, Art. VIII , §§ 12, 18.) 


“Who is to decide whether the proof be evident, or the presump- 




































* 

































CONSTITUTION OF OHIO, 1851. 


43 


tion great ? Most undoubtedly the same authority which prescribes 
the amount of bail, and passes upon the sufficiency of the sureties ; 
the judges of the court who exercise this same power in all analogous 
cases known to our laws. . . . The appeal must be addressed to 
the discretion of the court ; a sound legal discretion it is true, but one 
that can only be moulded into action by the evidence brought to bear 
upon the indictment.” State v. Summons, 19 Ohio, 139, 140— Spalding, J. 

2 Debates, 231, 328, 806, 826, 857, 870. 

Sec. 10. Except in cases of impeachment, and cases aris- 
ing in the army and navy, or in the militia when in actual 
service in time of war or public danger, and in cases of petit 
larceny and other inferior offenses, (1) no person shall be 
held to answer for a capital, or otherwise infamous crime, 
unless on presentment or indictment of a grand jury. (2) 
In any trial, in any court, the party accused shall be allowed 
to appear and defend in person and with counsel ; to demand 
the nature and cause of the accusation against him, (3) and 
to have a copy thereof; to meet the witnesses face to face, (4) 
and to have compulsory process to procure the attendance of 
witnesses in his behalf, and a speedy public trial by an im- 
partial jury (5) of the county or district, in which the offense 
is alleged to have been committed (6) ; nor shall any person 
be compelled, in any criminal case, to be a witness against 
himself, or be twice put in jeopardy for the same offense (7). 
(See Const 1802, Art VIII, $ 11.) 

(1.) “ By this section of the Constitution, a presentment or indict- 

ment of a grand jury is dispensed with ‘ in cases of petit larceny and 
other inferior offenses.’ How such offenses should thereafter be 
prosecuted, depended entirely upon legislative discretion. It is very 
evident that petit larceny is simply named as one of a class of 
offenses ; and equally so, that the class was intended to embrace all 
offenses for which a punishment less than imprisonment in the peni- 
tentiary is provided. This was a classification so long used in our 
laws, and so "well understood, as to leave no doubt that it w r as the one 
intended to be adopted by the Convention.” Dillingham v. State, 5 
Ohio St., 280, 282 — Ranney, C. J. 

“There are many offenses, made so hy statute, though decidedly 
immoral and mischievous in their tendencies, that are not crimes, but 
at most only quasi criminal, and where the Legislature may direct the 
mode of redress, untrammeled by this constitutional provision. Such 
are Sabbath-breaking, selling spirituous liquors on Sunday, and the 
disturbance of religious meetings, with many others. Of such, juris- 
diction may be given to justices of the peace, or the mayor of an in- 
corporated town.” Marlzle v. Town Council of Akron, 14 Ohio, 586-589 — 
Wood, C. J. 

(2) Where, on an indictment for grand larceny presented against 
H. L., a person was arraigned, and pleaded in abatement that his name 
is not H. L., but W. H. L., and the plea w*as found to be true, and 
the name thus disclosed w r as entered on the minutes of the court, and 
the trial and furf ur proceedings were had in pursuance of section 112 


Of the trial 
of accused 
persons and 
their rights. 


44 


CONSTITUTION OF OHIO, 1851. 


of the Code of Criminal Procedure : Held, that this section of the 
code is not in contravention of this section of the Constitution. Leisure 
v. State, 19 Ohio St., 43. 

“An individual accused of a crime cannot be compelled to answer 
the charge until the same has been made through the intervention of 
a grand jury, in the form of an indictment or a presentment. Should 
the Legislature pass an act to compel an individual to answer, without 
this prerequisite, such an act would be in violation of the Constitution, 
and void. But this clause in the Constitution has nothing to do with 
the particular forms of indictments. These forms will vary according 
to the nature of the criminal acts prohibited. The Legislature have 
the power to declare what acts are criminal; and they have the same 
power to prescribe the forms of indictments for the commission of such 
criminal acts. They cannot dispense with the indictment itself ; but 
they can dispense with some of its technical formalities.” Lougee v. 
State, 11 Ohio, 68-70 — Hitchcock, J. ; Wolf v. State, 19 Ohio St., 248-255 ; 
Turpin v. State, lb., 540-545. 

(3) “ The indictment, in the contemplation of the Constitution, is 

that written statement of the nature and cause of the accusation, with 
all the certainty and substantial requirements heretofore sanctioned 
and declared essential by the settled law of the country. Why these 
provisions in the fundamental law of the State ? Why the ceremony 
and expense of a grand jury to find and return an indictment setting 
out the ‘ nature and cause of the accusation ’ ? and why guarantee to 
the accused the right to demand and have a copy of the indictment, if 
the written averments, descriptive of the crime, are not required to be 
made with certainty and truth, charging the overt act, with all the 
substantial and distinguishing ingredients which the statute creating 
the offense has made essential to constitute the crime ? If any one or 
more of the substantial ingredients or distinguishing constituents of 
the crime may be omitted, the written accusation required would be- 
come a mere snare by which to mislead and entrap the accused on his 
trial. Where either purpose, intent, or knowledge, is, by the statute, 
made a distinguishing characteristic of a crime, it is as essential that 
such purpose, intent, or knowledge should be averred in the descrip- 
tion of the act charged as the crime as any other material and distin- 
guishing ingredient.” Fouts v. State, 8 Ohio St., 98-114, 115— Bartley, C. J. 

The indictment or information must aver all the material facts which 
it is necessary to prove to produce a conviction, and with such reason- 
able certainty as to advise the accused what he may expect to meet on 
the trial. Dillingham v. State, 5 Ohio St., 280 ; Lougee v. State, 11 Ohio, 
68; Lamberton v. State, lb., 282; Anderson v. State, 7 Ohio, 2 pt., 250; 
Davis v. State, 7 Ohio, 1 pt., 205 ; Hess v. State, 5 Ohio, 1-12 ; Gatewood v! 
State, 4 Ohio, 387 ; Fouts v. State, 8 Ohio St., 98-114. 

It is sufficient, in an indictment for manslaughter, to charge the 
crime in accordance with section 92 of the Code of Criminal Procedure. 
That section is not repugnant to the Constitution. Wolf v. State, 19 
Ohio St., 248. 

The provision in section 96 of the Code of Criminal Procedure, v»hich 
declares that it shall be sufficient in any indictment, where it is neces- 
sary to allege an intent to defraud, to allege that the party accused did 








CONSTITUTION OF OHIO, 1851. 


45 


the act with intent to defraud, without alleging an intent to defraud 
any particular person, is not in conflict with this j)rovision. Turpin 
v. State , 19 Ohio St., 540. 

(4) “ This, like numerous other provisions in the Bill of Bights, is 
a constitutional guaranty of one of the great fundamental principles 
well established and long recognized at common law, both in England 
and in this country. The scope and operation of it are clearly defined 
and well understood, in the common law recognition of it; and the 
assertion of it in the fundamental law of the state, was designed neither 
to enlarge nor curtail it in its operation, but to give it permanency and 
secure it against the power of change or innovation. The object of 
this provision manifestly is to exclude testimony by depositions, by 
requiring it to be given orally, in the presence of the accused, on the 
trial. The admission of testimony by depositions against the accused 
in a criminal cause, would often afford the prosecutor great advantages 
over him, as well as furnish, at times, opportunities for abuses beyond 
the reach of detection by the defendant. Deprived of this right, the 
accused would often be without the opportunity of cross-examination, 
without the means of seeing, hearing or knowing the persons who tes- 
tify against him, and without the advantage of an oral examination of 
the witnesses before the jury which is to decide upon his case. But 
important as this right is, as established at common law and secured 
by the Constitution, it has application to the matter of the personal 
presence of the witnesses on the trial, and not to the subject matter or 
competency of the testimony to be given. The requirement that the 
accused shall be confronted, on his trial, by the witnesses against him, 
has sole reference to the personal presence of the witness, and it in no 
wise affects the question of the competency of the testimony to which 
he may depose. When the accused has been allowed to confront, or 
meet face to face, all the witnesses called to testify against him on the 
trial, the constitutional requirement has be^n complied with.” Sum- 
mons v. State , 5 Ohio St., 325-340 ; Bartley, C. J. 

Testimony proving the statements made by a deceased witness on 
oath, at a former trial between the same parties, being one of the estab- 
lished exceptions to the rule that hearsay is incompetent as evidence, 
the admission of a witness to give evidence of this kind in a criminal 
case, does not contravene this provision of the Constitution. (Ib., 325.) 
So in regard to evidence of dying declarations, the objection to such 
evidence going to the competency of the evidence, and not to the com- 
petency of the witness. Ib., 342; Bobbins v. State, 8 Ohio St., 131 ; Mont- 
gomery v. State, 11 Ohio, 424; Wagers v. Dickey, 17 Ohio, 439. 

(5) “ The right of the accused to an impartial jury cannot be abridged. 
To secure this right, it is necessary that the body of triers should be com- 
posed of men indifferent between the parties, and otherwise capable of 
discharging their duty as jurors. Whether in the practical administra- 
tion of justice the right is infringed, is, necessarily, a judicial question ; 
and whether, in a particular case, a proposed juror has the state of 
mind which will render him impartial, is a question of fact which it is 
the duty of the court trying the case to decide. This duty is enjoined 
by the Constitution, and, it is true, cannot be impaired or the right 
abridged by legislative action. The previous demeanor of the juror, 


46 


CONSTITUTION OF OHIO, 1851. 


the information he may have received, or the opinions he may have 
entertained or expressed, are only evidence of the state of his mind, 
and are material only as they may tend to show a free judgment of the 
case, the existence of prejudice against either of the parties, or his in- 
difference between them.” Cooper v. State, 16 Ohio St, 328-331 — 
White, J. ; see Martin v. State, 16 Ohio, 364. 

The constitutional right of trial by jury is not infringed, when the 
option is given to the accused to have the issue tried by the court or 
the jury, and he submits the cause to the court. Dillingham v. State, 5 
Ohio St., 280. And section 42 of the “act defining the jurisdiction 
and regulating the practice of probate courts,” passed March 14, 1853 
(51 0. L., 167 ; S. & C., 1212), providing that “upon a plea other than 
a plea of guilty, if the defendant do not demand a trial by jury, the 
probate judge shall proceed to try the issue,” is a valid and constitu- 
tional enactment. Dailey v. State, 4 Ohio St., 57. 

The issue made by the plea of not guilty cannot be tried by the 
court, without the waiver by the parties of a jury trial. Slocum v. 
Lessee of Swan, 4 Ohio St., 161. 

But upon the trial of an issue raised by a plea of not guilty, in the 
higher grades of crime, it is not in the power of the accused to waive 
a trial by jury, and, by consent, submit to have the facts found by the 
court, so as to authorize a legal judgment and sentence upon such find- 
ing. Williams v. State, 12 Ohio St., 622. 

Section 8 of the act of April 16, 1857 (Swan & Critchfield, 690), “ to 
authorize the establishment of houses of refuge,” and the statutes sub- 
sequently enacted enlarging the operation of that act so as to authorize 
commitments to “The State Reform Farm” (S. & C., 1380, 1381; S. & 
S.. 388), are not repugnant either to this section or to section five of 
this article, although they make no provision for a trial by jury. Pres- 
cott v. State, 19 Ohio St., 184. 

In a summary proceeding before the probate court, under the act of 
February 26, 1843 (S. & C., 618), on complaint of an administrator 
against a party suspected of embezzling, concealing or conveying away 
the property or effects of the estate, the court has no constitutional 
power to render judgment against the party so charged, except for such 
property and effects as he, on liis examination, admits himself guilty 
of having embezzled, concealed or carried away ; and to the extent that 
the statute professes to authorize a judgment in cases w r here there is a 
controversy between the parties, it is unconstitutional. Howell v. Fry, 
19 Ohio St., 556. 

An ordinance of an incorporated village provided that persons keep- 
ing billiard-tables, to be used by others, should be imprisoned for a 
term not exceeding thirty days. Held, that although such an ordin- 
ance may have been authorized by section 35 of the Municipal Corpo- 
ration Act, as amended April 5, 1856 (S. & C., 1507), yet no correspond- 
ing change in the powers and jurisdiction of mayors of incorporated 
villages, so as to furnish the means of a trial by jury, having been 
made, a trial and sentence to imprisonment, by the mayor, of a person 
charged with a violation of the ordinance, are illegal. Thomas v. Vil- 
lage of Ashland, 12 Ohio St., 124. '“It would be a grave question 
whether the Legislature could create a new offense, to be punished by 









CONSTITUTION OF OHIO, 1851. 


47 


imprisonment, and provide that the trial for such offense should he 
before a single judge, without a jury.” lb., 129— Gholson, J. 

The act supplementary to an act directing the mode of trial in crim- 
inal cases, passed Mafch 3, 1860 (S. & C., 1197), is not repugnant to this 
section. Cooper v. State, 16 Ohio St., 328. 

See further as to trial by jury:- Art. I, \ 5, and notes; Art. I, g 19, 
Note 7 ; Art. XIII, $ 5, Note 6. 

(6) In the case of State v. Arrison, which was an indictment for murder, 
referred to in 8 Ohio St., 124, an order was made by Parker, J., of the 
Hamilton County Common Pleas, changing the venue to the County 
of Butler ; but the presiding judge (Clark, J.), after full argument, 
held that this could not be done, in view of this constitutional pro- 
vision. 

(7) “ This constitutional provision extends the common law maxim, 
w r hich was limited to felonies, to all grades of offenses ; and it is but 
the application to the administration of criminal justice of a more 
general maxim of jurisprudence, that no one shall be twice vexed for 
one and the same cause. On this maxim rests the whole doctrine of 
res adjudicatx. The object of incorporating it into the fundamental 
law, was to render it, as respects criminal causes, inviolable by any 
department of the government.” State v. Behimer, 20 Ohio St., 572-576 — 
White, J. 

“ It is the right of the state, and one of the most solemn and respon- 
sible of its duties, to punish' crime ; and it is the absolute right of any 
one accused of crime to demand, 1 a speedy public trial by an impartia 
jury,’ and a verdict, declaring his guilt or innocence, according to the 
due course of law. The one is indispensably necessary to the safety 
of the commnnity and the preservation of peace and order, and the 
other for the protection of the innocent, and to prevent the oppression, 
which might otherwise be practiced, by those having charge of state 
prosecutions. The problem has always been to preserve intact both of 
these important rights; and the object has been completely accom- 
plished, by holding the accused liable to answer, until, in the regular 
course of judicial proceedings, the tribunal charged with the issue, 
without molestation or interference, has had the fullest and amplest 
opportunity to pass upon the question of his guilt; and by making 
every interference on the part of the government, by which a verdict 
is prevented, while a reasonable hope remains that one may be ren- 
dered, an absolute bar to his further prosecution. If a verdict cannot 
be obtained upon one trial, another may be lawfully had; and the 
unavoidable delay which ensues, is the fault of no one. For the bet- 
ter protection of the accused, the law requires unanimity in the jury 
before a verdict can be rendered ; but to allow, on the one hand, the 
ignorance, perversity, or even honest mistake of a single juror to para- 
lyze the administration of justice, and turn loose upon the community 
the most dangerous offenders, or, on the other, to allow the govern- 
ment to trifle with the constitutional safeguards of the accused, w'ould 
equally subvert the foundation principles upon which the criminal 
code is administered.” Dobbins v. State, 14 Ohio St., 493-501 — Ran 
ney, J . 

When the defendant, in a criminal prosecution, is discharged under 


-18 


CONSTITUTION OF OHIO, 1851. 


Of the 
freedom of 
speech and 
of the press. 

Of libels. 


the 161st or 162nd section of the criminal code, on the ground that he 
has not been brought to trial within the time therein limited, the order 
of discharge is to be regarded, not as a mere temporary release of the 
prisoner from confinement, but as a final judgment in the cause, and a 
bar to all subsequent prosecutions for the same crime or offense. Ex 
parte McGehan, 22 Ohio St., 442. 

A jury, charged with the trial of a capital case, after long delibera- 
tion unable to agree upon a verdict, may be discharged by the court, 
and the accused held to a further trial, without any infringement of 
this provision. The power to do so, against his consent, only exists in 
cases of absolute necessity, and when the jury have considered the 
cause for such a length of time, as to leave no reasonable expectation 
that they will be able to agree upon a verdict. Dobbins v. State, 14 
Ohio St., 493; Poage v. State, 3 Ohio St., 229-239; Hurley v. State , 6 
Ohio, 400. 

But where a court, in a criminal case, after a jury have retired to 
consult on their verdict, discharges them without the assent of the 
prisoner, and without the existence of a cause for which they might 
lawfully be discharged, the prisoner cannot be again tried for the same 
offense. Poage v. State, 3 Ohio St., 229. 

“Though the existence of the power was once doubted, it is now 
w’ell settled that the court has the pow r er, at the instance of the defend- 
ant, after a verdict of conviction, to grant a new trial, without infring- 
ing this provision. The power has been uniformly exercised in this 
state, when, in the judgment of the court, a proper case arose.” State 
v. Behimer, 20 Ohio St., 572-576— White, J. 

Article five of the amendments of the Constitution of the United 
States does not operate as a limitation of the powder of the state govern- 
ments over their own citizens, but is exclusively a restriction upon 
federal power. Prescott v. State, 19 Ohio St., 184. 

2 Debates, 231, 328, 329, 330, 463, 476, 806, 826, 857, 870. 

Sec. 11. Every citizen may freely speak, write, and pub- 
lish his sentiments on all subjects, being responsible for the 
abuse of the right ; (1) and no law shall be passed to restrain 
or abridge the liberty of speech, or of the press. In all 
criminal prosecutions for libel, the truth may be given in 
evidence to the jury, and if it shall appear to the jury, that 
the matter charged as libelous is true, and was published 
with good motives, and for justifiable ends, the party shall 
be acquitted. ( See Const. 1802, Art. VIII , § 6.) 

(1) “The liberty of the press, properly understood, . is not incon- 
sistent with the protection due to private character. It has been well 
defined as consisting in ‘the right to publish, w T ith impunity, the 
truth, with good motives, and for justifiable ends, wdiether it respects 
government, magistracy, or individuals.’” Cincinnati Gazette Co. v. 
Timberlake, 10 Ohio St., 548-555 — Scott, J. 

Whilst a full, impartial and correct account of a trial in a court of 
justice, unaccompanied by defamatory comments, may, in general, be 
published with impunity, yet this privilege does not extend to the pub- 








\ 







CONSTITUTION OF OHIO, 1851. 


49 


lication of preliminary proceedings merely, which are of a purely ex 
parte character, such as a statement, in detail, of the contents or sub- 
stance of an affidavit, made before a police magistrate, with a view to 
the arrest of a party thereby charged with crime. Such publication 
can be justified only by showing the truth of the charge. 16., 548; 
and see the same case on trial below reported in 1 Disney’s Rep., 320. 

“ No man can be held responsible in a civil proceeding for publishing 
the truth ; but he is responsible for publishing a falsehood, unless he 
shows a justification in the occasion or circumstances. To publish 
that which is false and injurious to another, must be deemed an abuse. 
So, if the first publication of false and injurious matter be an abuse of 
the right of speech, or of the liberty of the press, and a wrongful act, 
it can confer no right on another to repeat or republish. This is also 
an abuse, for which the party repeating or republishing becomes 
responsible. And it is now well settled that this responsibility cannot 
be escaped by giving the name of the author or first publisher. And 
no such doctrine has at any time obtained countenance in reference to 
a libel or written slander. To repeat what a man hears in conversa- 
tion, is quite a different matter from writing it out and publishing it in 
a newspaper. Where such libel consists in publishing the fact of an 
accusation having been made against another, the defendant must 
show the accusation to be true.” lb., 1 Disney’s Rep., 320-322 — Ghol- 
son, J. 

2 Debates, 231, 330, 468, 559, 806, 826, 857, 870. 

Sec. 12. No person shall be transported out of the 
state, (1) for any offense committed within the same; and 
no conviction shall work corruption of blood, or forfeiture of 
estate. ( See Const. 1802, Art. VIII , §§ 16, 17.) 

(1) “This prohibition must have been intended to limit the Legis- 
lature in the punishment of crimes, referring the forbidden transporta- 
tion or banishment to that which is involuntary on the part of the 
criminal, and made a part of the judgment of the tribunal pronouncing 
sentence. But a condition attached to a pardon granted by the Gov- 
ernor of Ohio to a person convicted and committed to the state peni- 
tentiary for the period of five years, that he would immediately leave 
the state, and not return during that period, is valid ; and if, in viola- 
tion of it, he is found within the state afterward, he is liable to arrest 
as an escaped convict.” Ex parte Lockhart, 1 Disney’s Rep., 105-107 — 
Storer, J. ( See Art. Ill, § 11, note.) 

2 Debates, 231, 330, 464, 467, 468, 806, 826, 857, 870. 

Sec. 13. No soldier shall, in time of peace, be quartered 
in any house, without the consent of the owner ; nor, in time 
of war, except in the manner prescribed by law. ( See Const. 
1802, Art. VIII § 22.) 

2 Debates, 231, 330, 806, 826, 857, 870. 

Sec. 14. The right of the people to be secure in their per- 
sons, houses, papers and possessions, against unreasonable 
searches and seizures shall not be violated ; and no warrant 
shall issue, but upon probable cause, supported by oath or 
affirmation, particularly describing the place to be searched, 
4 


Transporta- 
tion, etc., for 
crime. 


Of quarter- 
ing troops. 


Search war- 
rants and 
general war- 
rants. 


50 


CONSTITUTION OF OHIO, 1851. 


No impris- 
onment for 
debt. 


Of redress 
in courts. 


Hereditary 

privileges, 

etc. 


Suspension 
of laws. 


Of the invio- 
lability of 
private prop- 
erty. 


and the person and things to be seized. ( See Const. 1802, 
Art. VIII , § 5.) 

2 Debates, 231, 330, 464, 806, 826, 85 7, 870. 

Sec. 15. No person shall be imprisoned for debt (1) in 
any civil action, on mesne or final process, unless in cases of 
fraud. (2) (See Const. 1802, Art. VIII , § 15.) 

(1) The provision in the Bastardy Act (S. & C., 178, Sec. 6), direct- 
ing the putative father to be committed to jail in default of giving 
security to perform the order of the court charging him with the 
maintenance of his illegitimate child, is not in conflict with this sec- 
tion. The sum in which the defendant is charged with the mainten- 
ance of the child, is not a debt within the meaning of this provision of 
the Constitution. Musser v. Stewart , 21 Ohio St., 353 ; Perkins v. Mobley , 
4 Ohio St., 668 ; Hawes v. Cooksey , 13 Ohio, 242-245. 

(2) “This constitutional provision clearly contemplates legislation 
before any arrest could be made in civil actions, though fraud may have 
intervened. Courts, therefore, whether of general or limited jurisdic- 
tion, have now no common law power to authorize arrests in such 
cases, and the power, if it exists at all, must have been conferred by 
express legislation.” Spice v. Steinruck, 14 Ohio St., 213-218 — Peck, C. J. 

An arrest cannot be made, in a civil action, on the ground that the 
defendant is not a resident of the State of Ohio. Messenger v. Lockwood, 
9 West. Law Jour., 521. 

2 Debates, 231, 330, 331, 464, 466, 806, 826, 857, 870. 

Sec. 16. All courts shall be open, and every person, for 
an injuiy done him in his land, goods, person, or reputation, 
shall have remedy by due course of law ; and justice adminis- 
tered without denial or delav. (See Const. 1802, Art. VIII , § 7.) 

2 Debates, 337, 464, 806, 826, 857, 870. 

Sec. 17. No hereditary emoluments, honors, or privileges, 
shall ever be granted or conferred by this state. (See Const. 
1802, Art. VIII, § 24.) 

2 Debates, 231, 335-337, 466, 467, 806, 826, 85 7, 870. 

Sec. 18. No power of suspending laws shall ever be ex- 
ercised, except by the general assembly. (See Const. 1802, 
Art. VIII, § 9.) 

2 Debates, 231, 337, 464, 468, 469, 806, 826, 857, 870. 

Sec. 19. Private property shall ever be held inviolate, (1) 
hut subservient to the public welfare. (2) When taken in 
time of war or other public exigency, imperatively requiring 
its immediate seizure or for the purpose of making or re- 
pairing roads, which shall be open to the public, (3) without 
charge, a compensation shall be made to the owner, in 
money, and in all other cases, where private property shall 
be taken for public use, (4) a compensation therefor shall 
first be made in money, (5) or first secured by a deposit of 
money; (6) and such compensation shall be assessed by a 
jury, (7) without deduction for benefits to any property of the 
owner. (8) (See Const. 1802, Art. VIII, § 4.) 

(1) The statute for the relief of occupying claimants, passed March 
10, 1831 (3 Curwen, 2403 ; S. & C., 881), requiring the value of the per- 






















































CONSTITUTION OF OHIO, 1851. 


51 


manent improvements of the bona fide occupant, under color of title, 
to be paid as a condition precedent to the entry and possession of the 
owner, although an encroachment on the rights of private property as 
settled by the common law, rests upon a strong equity in favor of a 
compensation for improvements, which have augmented the value of 
the land, and inured to the benefit of the owner. McCoy v. Grandy, 3 
Ohio St., 463. 

The option which this law gives to the owner of land, after a recov- 
ery in ejectment, either to take the land on paying for the improve- 
ments, or to take the amount of its value in money without the im- 
provements, secures to the owner the property in the land, and at the 
same time protects the occupying claimant in his equitable claim to a 
compensation for his improvements. 76. 

But the amendatory act of March 22, 1849 (2 Curwen, 1497 ; S. & C., 
SS6), giving to the occupying claimant the option which the original 
act gave to the owner of the land, thus taking the property away from 
the owner after the solemn form of a recovery and judgment in eject- 
ment, and transferring it to his unsuccessful adversary, who is ordered 
to be ejected as an intruder on the land, is a palpable invasion of the 
right of private property. 76. 

In case of a mortgage, a judgment lien, a levy under execution, 
assessment of a tax, or other incumbrance on land arising out of the 
owner’s liabilities, it is not within the scope of the legislative power to 
take the fee in the land from the owner and transfer it absolutely to 
the person holding the claim, while the owner stands ready and insists 
on discharging the liability and saving his property, lb. 

The competency of the legislative power to transfer the property of 
one person to another, without the consent of the former, is not shown 
by any analogy either to proceedings in partition or the bar of the stat- 
ute of limitations. In the case of the former, although the right of 
partition is an incident to the estate of tenancy in common, and the 
division the result of necessity, yet the owner is not divested of his 
property without the opportunity of saving it by a purchase ; and in 
the case of the latter, the bar of the statute rests upon a rule of evi- 
dence raising a presumption that a title has passed, and upon this 
ground the aid of the judicial power is denied to one who has slept too 
long on his rights. 76. 

The occupying claimant law rests upon entirely different ground ; 
and in securing to the occupant a compensation for his improvements, 
as a condition precedent to the restitution of the property to the 
owner, it goes to the utmost stretch of the legislative power touching 
the subject. And the amendatory act of 1849, providing for the trans- 
fer of the land to the occupying claimant without the consent of the 
owner, is in plain conflict with this provision, and is, therefore, uncon- 
stitutional and void. lb. 

“ The plaintiff’s affidavit in replevin of his property and right of pos- 
session, and the defendant’s possession and claim of right to the same 
property, make a case of disputed ownership to the chattel replevied. 
Our statute directs its seizure and delivery over to the plaintiff, if he 
will give bond with surety to pay to the defendant all damages ; and if 
he do so, then the disputed right of the defendant to the chattel 


CONSTITUTION OF OHIO., 1851. 


becomes a mere right in action to recover its value from the plaintiff 
and his sureties; but if the plaintiff fails to give bond, then the prop- 
erty is returned to the defendant, and the plaintiff’s right to the chat- 
tel is changed into a mere right to recover its value, in that action, from 
the defendant. And to this there is no constitutional objection.” 
Smith v. McGregor , 10 Ohio St., 461-474 — Peck, J. 

(2) This clause clearly prohibits the taking of private property for 
private use, without the owner’s consent. Beeves v. Treas. of Wood Co., 
8 Ohio St., 333-345. Nor could it be so taken, w T ere there no constitu- 
tional provision on the subject. Shaver v. Starrett, 4 Ohio St., 494-498 — 
Thurman, C. J. 

The power of eminent domain is not conferred either by this section 
or by the fifth section of Article XIII; they simply prescribe modes 
for, and limitations upon, its exercise. The power is an inseparable 
incident of sovereignty, and its exercise for the accomplishment of law- 
ful objects is conferred upon the General Assembly in the general 
grant of legislative authority {Art. II, \ 1). Giesy v. C. W. & Z. R. R. 
Co., 4 Ohio St., 308. 

It may be used to appropriate lands for a public highway of any 
kind, and this whether the road is built and owned by the public or 
by a corporation as a public instrumentality, provided it is kept open 
for public use as a matter of right, or, according to the nature of the 
work, the corporation is made a common carrier of goods or of passen- 
gers. lb. 

It may be exercised directly or indirectly by the General Assembly, 
without the intervention of the judiciary, except for determining the 
amount of compensation. But the courts possess full power to deter- 
mine its proper limits, and to prevent abuses in its exercise. Ib. 

The power rests upon public necessity, and can only be exercised 
where such necessity exists. But this necessity relates rather to the 
nature of the property, and the uses to which it is applied, than to the 
exigencies of the particular case ; and it is no objection to the exercise 
of the power, that lands, equally feasible, could be obtained by pur- 
chase. Ib. 

Only such interest as will answer the public wants can be taken ; 
and it can be held only so long as it is used by the public, and cannot 
be diverted to any other purpose. Ib. 

Under the statute authorizing the appropriation of private property 
for a public wharf, by a municipal corporation, the discretion of de- 
termining the quantity of ground required for such purpose is vested 
in the corporatiion ; and where, in making the appropriation, this dis- 
cretion has been exercised by the municipal authorities in good faith, 
their action is final. Iron R. R. Co. v. Ironton, 19 Ohio St., 299. 

Authority to lay down the necessary structure for a street railway, in 
a common highway or street, and to run cars thereon for the carriage 
of passengers for hire, may be lawfully granted to a company incorpo- 
rated for that purpose, when no private right of the adjoining lot- 
owners is thereby impaired. Street Railway Co. v. Cumminsville, 14 Ohio 
St., 524. 

The Legislature may authorize the occupation of an easement origin- 
ally acquired by grant or appropriation, in any manner calculated to 




CONSTITUTION OF OHIO, 1851. 


U 3 


further the general objects of the acquisition ; but may not divert it to 
purposes which exclude the original uses, or lay additional burdens 
upon the land, or destroy or impair the incidental easements of adjoin- 
ing lot-owners in the street or highway. This interest of adjoining lot- 
owners is properly protected by the Constitution, and subject to be 
taken or appropriated only upon the condition that compensation is 
made. Ib . ; Hatch v. C. & I. R. R. Co., 18 Ohio St., 92; Sargent v. 0. A* 
M. R. R. Co., 1 Handy’s Rep., 52. 

A claimant for'damages in the alteration of a road, is not entitled to 
recover where such alteration merely renders the road less convenient 
for travel, without directly impairing his access to the road from the 
improvements on his land. Jackson v. Jackson, 16 Ohio St., 163. 

It is well settled that an action lies as well for damage to adjoining 
property by stopping or impairing the travel on, to, or from a street or 
highway, as any other damage that can be done to property, although 
the property injured may not be touched by the obstruction. L. M. 
R. R. Co. v. Naylor, 2 Ohio St., 235. 

The owners of unimproved lots cannot recover damages from a 
municipal corporation for filling, ditching or cutting down streets, 
being presumed to purchase with a view to a reasonable improvement 
of the streets. Crawford v. Village of Delaware, 7 Ohio St., 459. 

The owners of lots upon a street, the grade of 'which has not been 
established, must use reasonable care and judgment in making improve- 
ments with a view to a reasonable arid proper grade ; and the town or 
city will not be responsible for injuries to such improvements by after- 
ward grading the street, if the grade by ordinary care could have been 
anticipated. Ib. ; Cincinnati v. Penny, 21 Ohio St., 499. 

But if erections are made on a lot in accordance with an established 
grade, and the grade is afterward altered, and a substantial injury is 
thereby done to the owner of a lot, he is entitled to compensation. 
Crawford v. Village of Delaware, 7 Ohio St., 459; Street Railway v. Cum- 
minsville, 14 Ohio St., 523 ; Cincinnati v. Penny, 21 Ohio St., 499. 

(3) A township road in this state is a public highway, and subject 
to the uses of all having occasion to travel it, and may be highly neces- 
sary to enable the person or persons most immediately and directly in- 
terested in it, to discharge properly, and without trespassing on their 
neighbors’ premises, many of the public duties enjoined upon them as 
citizens of the state. In the establishment of such roads, therefore, 
by the exercise of the right of eminent domain, private property may 
be made subservient to the public welfare, on payment therefor in 
money. Ferris v. Bramble, 5 Ohio St., 109; Shaver v. Starred, 4 Ohio 
St., 494. 

The interest of the public in public roads, consisting of a perpetual 
easement in the land covered by them, for all the actual uses and pur- 
poses of public travel, may, at the discretion of the General Assembly, 
be transferred, without any pecuniary equivalent, to a plankroad com- 
pany, such plankroad still remaining a public highway, and subject to 
the same uses and purposes as before. In such case the company 
becomes the assignee of the public, and lawfully possessed of the same in- 
terest the public had. Such change of the mode of supporting an existing 
highway cannot be presumed to affect injuriously the rights of the propri- 


51 


CONSTITUTION OF OHIO, 1851. 


etors of land over which it passes, and if such injury is claimed to have 
resulted, it must be proved. C. F. & C. P. P. Co. v. Cane, 2 Ohio 
St., 420. 

(4) The act of May 1, 1862, entitled “ An act to provide for locating, 
establishing and constructing ditches, drains and water-courses in 
townships ” (59 0. L., 93), is not repugnant to the Constitution of the 
state in so far as its provisions relate to the taking of private property 
for township ditches, whenever the public health, convenience or wel- 
fare demands it ; nor in so far as its provisions relate to the mode of 
compensating the owner for property taken for the public use ; nor in 
so far as its provisions relate to the assessment of the costs of con- 
structing the ditch upon lands benefited thereby. Sessions v. Crunkilton, 
20 Ohio St., 349. But the act of May 1, 1854, “ authorizing the trustees 
of townshipe to establish water- courses,” etc. (Swan’s R. S., 333), and 
the amendatory act of April 14, 1857 (Swan’s R. S., 333), are in contra- 
vention of this section, inasmuch as they authorize an appropriation 
of private property without reference to the public welfare. Reeves v. 
Treas. of Wood Co., 8 Ohio St., 333. 

The opening of a street, by the ordinance of a municipal corpora- 
tion, is a dedication of the property condemned to a specific use, i. e., 
a street or highway; and the owners of such property have an imme- 
diate right of action therefor against the city. By the fact of thus order- 
ing the street to be opened, the council declare the necessity for its exist- 
ence, and cannot afterwards recklessly rescind their action, nor appro- 
priate the property condemned to other uses, especially w r hen other 
parties, in consequence of obeying such order, have surrendered or. 
acquired valuable rights, and must be greatly damaged by the change. 
Strader y. Cincinnati, 1 Handy’s Rep., 446. 

The use for which private property may be taken must be strictly 
public. A canal is such a public work that private property may be 
taken in constructing it. Cooper v. Williams, 4 Ohio, 253-288 ; Willyard 
v. Hamilton, 7 Ohio, 2 pt., 111. And also in repairing it. Bates v. Cooper, 
5 Ohio, 115-119. A toll-bridge, authorized by law, is also such a w T ork. 
Young v. Buckingham, 5 Ohio, 485. So are public streets. Hickox v. Cleve- 
land, 8 Ohio, 543 ; Symonds v. Cincinnati, 14 Ohio, 147 ; Brown v. Cincin- 
nati, Vo., 541. So are turnpikes. Kemper v. C. C. & W. T. Co., 11 Ohio, 
393. And railroads. Moorehead v. L. M. R. R. Co., 17 Ohio, 340. And 
township roads. Ferris v. Bramble, 5 Ohio St., 109; Shaver y. Starred, 4 
Ohio St., 494. And township ditches, drains and water-courses, when the 
public health, convenience or welfare demands them. Sessions y. Crunk- 
ilton, 20 Ohio St., 349 ; and see Reeves v. Treas. of Wood Co. ,8 Ohio St., 333. 

(5) An assessment of damages in the “sum of one hundred and 
fifty dollars, with a wagon way and stop for cattle,” as the damages 
sustained by the owner of land taken for the construction of a railroad, 
is not in conformity with this provision. C. 0. R. R. Co. y. Holler, 7 
Ohio St., 220. 

No valid appropriation of property for public use can be made with- 
out a law providing compensation to the owner, to be assessed in the 
mode prescribed in the Constitusion. The Constitution, in this par- 
ticular, does not execute itself. McArthur y. Kelly, 5 Ohio, 140; Foote 
v. Cincinnati, 11 Ohio, 408; Lamb y. Lane, 4 Ohio St., 167; Shaver y. 





CONSTITUTION OF OHIO, 1851. 


55 


Starrett, lb., 494 ; Watson 1 s Ex V v. Trustees of Pleasant Tp.. 21 Ohio St., 
667 ; Cincinnati v. Com. of Hamilton Co., 1 Disney’s Rep., 4. 

(6) In case of the assessment of damages for laying out a road over 
the lands of any person, the damages or compensation for the land 
necessary to be taken must be paid or tendered in money, or secured 
to be paid to the acceptance of the owner, before the opening of the 
road can be ordered. Ferris v. Bramble, 5 Ohio St., 109. 

Under the act to provide for locating, establishing and constructing 
ditches, drains and water-courses (S. & C., 523 ; S. & S., 313), personal 
notice to the owner of lands sought to be taken for the construction of 
a ditch is not indispensable in order to its condemnation and appro- 
priation, the notice by publication provided for therein being sufficient 
for that purpose. Cupp v. Com. of Seneca Co., 19 Ohio St., 173. 

A land-ow T ner failing to make application for compensation or dam- 
ages within the time limited by the act, will be deemed and held to 
have waived his right to the same, although he had no actual notice of 
the proceeding; and the provision in said act to that effect is not in 
conflict with this section of the Constitution. Ib. 

The proviso in section six of the act of January 27, 1853, “ for open- 
ing and regulating roads and highways ” (S. & C., 1291), declares a rule 
of evidence whereby a waiver, on the part of the land-owner, of his 
right to compensation, may be established, and does not conflict with 
this section of the Constitution. The rule contained in this proviso 
cannot be regarded either as a statute of limitation, whereby a right 
secured by the Constitution is barred immediately upon the accruing 
thereof, or as a statute declaring the forfeiture of private property. 
j Rechner v. Warner, 22 Ohio St., 275. 

But where real estate of a non-resident has been taken by the county 
commissioners for public use, as a county road, and it appears that the 
owner has not been notified, either in law or in fact, of the proceedings 
for its condemnation, the action of the county commissioners, as to 
him, is void, and he may maintain his action against them for the re- 
covery of the compensation to which he may be entitled. Badgely v. 
Com. of Hamilton Co., 1 Disney’s Rep., 316. 

(7) This provision applies to all the cases mentioned in the section. 
Lamb v. Lane, 4 Ohio St., 167. 

The word jury in this section, as well as in the other places in the 
Constitution where it occurs, means a tribunal of twelve men, presided 
over by a court, and hearing the allegations, evidence and arguments 
of the parties. And they may be sent to inspect the premises, lb . ; 
Work v. State, 2 Ohio St., 307 ; Shaver v. Starrett, 4 Ohio St., 494. 

An assessment may be made by viewers in the first instance, pro- 
vided a right of appeal is given to a court in which they may be as- 
sessed by a constitutional jury. Lamb v. Lane, 4 Ohio St., 167 ; In Re, 
Wells County Road, 7 Ohio St., 16 ; j Rechner v. Warner, 22 Ohio St., 275. 

Under the Constitution of 1802, three disinterested freeholders of 
the county where the property is situated, appointed by a judge of a 
court of record, was a competent tribunal to make the assessment. 
Willy ard v. Hamilton, 7 Ohio, 2 pt., Ill; Work v. State, 2 Ohio St., 
296-307 ; Kramer v. C. 6c P. R. R. Co., 5 Ohio St., 140. 

The owner of lands is entitled to a jury to assess damages sustained 


CONSTITUTION OF OHIO, 1851. 

by the establishment of a county road. As to whether the Constitu- 
tion operated upon cases pending before legislation, quere. In Re, Wells 
County Road, 7 Ohio St., 16. 

So much of the act passed March 5, 1839, entitled “ An act to amend 
the act to provide for the vacation of town plats, and for other pur- 
poses,” passed January 29, 1828 (1 Curwen, 249 ; S. & C., 1487), and of the 
act of February 19, 1840, entitled “ An act to amend the act to provide 
for the vacating of town plats, and for other purposes ” (1 Curwen, 30 ; 
S. & C., 1488), as authorize the assessment of damages, by way of com- 
pensation, without the intervention of a jury, is inconsistent with this 
Constitution and void. Cincinnati v. Com. of Hamilton Co., 1 Disney’s 
Rep., 4. 

The act of January 27, 1853, entitled “ An act for opening and regu- 
lating roads and highways ” (S. & C., 1289), as amended April 8, 1856 
(S. & C., 1301), is not repugnant to the provisions of the Constitution 
relating to trial by jury, as contained in sections five and nineteen of 
the first article. The right of appeal therein provided for, to the pro- 
bate court, where a constitutional jury may be had, validates the stat- 
ute ; and the provision therein for an appeal bond, with sureties, con- 
ditioned for the payment of costs adjudged against the appellant, does 
not contravene the right of trial by jury, as guaranteed by the Consti- 
tution. Reckner v. Warner, 22 Ohio St., 275. 

See further as to juries and the right thereto, Art. I, § 5, and Notes 5 
Art. I, § 10, Note 5 ; Art. XIII, § 5, Note 6. 

(8) In proceedings for the appropriation of private property to pub- 
lic uses, arising under the Constitution of 1802, the construction put 
upon that instrument by the Supreme Court, that it allowed the bene- 
fits conferred to be deducted from the value of the property appropri- 
ated, and that it did not require the assessment to be made in a court, 
or by a jury, will be adhered to by the present Supreme Court. 
Kramer v. C. & P. R. R. Co., 5 Ohio St., 140. 

An assessment upon lands fronting on a street, to reimburse the 
amount of compensation paid the owner for his other land taken for 
the use of the street, is authorized by the statute (S. & S., 834), and is 
not in violation of this constitutional provision. Cleveland v. Wick, 18 
Ohio St., 303. 

The provisions of this section and of section five of Article XIII — 
the one requiring compensation to be made without deduction for bene- 
fits, when property is appropriated to a public use, and the other pro- 
viding for compensation irrespective of benefits, where it is taken by a 
corporation for a right of way— are, in legal effect, identical. When 
taken under either section, its fair market value in cash, at the time it 
is taken, must be paid to the owner ; and the jury, in assessing the 
amount, have no right to consider or make any use of the fact that it 
has been increased in value by the proposal or construction of the im- 
provement. Giesy v. C. W. & Z. R. R. Co., 4 Ohio St., 309. ( See Art. 
XIII, § 5.) 

1 Debates, 164, 290-293 ; 2 Debates, 176-182, 220-240, 318, 634, 652, 
653, 663, 664, 806, 826, 827, 857, 870. 

Sec. 20. This enumeration of rights shall not be con- 
























































































































































































CONSTITUTION OF OHIO, 1851. 


57 


strued to impair or deny others retained by the people ; and 
all powers, not herein delegated, remain with the people. 
{See Const. 1802, Art. VIII , § 28.) 

2 Debates, 281, 337, 464, 806, 827, 857, 870. 


ARTICLE II. 

LEGISLATIVE. 

“All of this article is devoted to the subject of legislative powers 
and duties. But it has respect to future legislative bodies, and future 
legislation under this Constitution, rather than to past, under the 
former Constitution.” Allbyer v. State, 10 Ohio St., 588-590 — Sutliff, J. 

Section 1. The legislative power of this state (1) shall 
be vested in a general assembly, (2) which shall consist of a 
senate, and house of representatives. ( See Const. 1802, Art. I, 

§i.) 

(1) “ The same provision, in very nearly the same words, is found in 

the former Constitution. It w T ill be observed that the provision is 
not that the legislative power, as conferred in the Constitution, shall 
be vested in the General Assembly, but that the legislative power of 
this state shall be vested. That includes all legislative power which 
the object and purposes of the state government may require, and we 
must look to other provisions of the Constitution to see how far, and 
to w T hat extent, the legislative discretion is qualified or restricted. 
Hence the difference between the Constitution of the United States 
and a state Constitution, such as ours. In the former, we look to see if 
a power is expressly given ; in the latter, to see if it is denied or lim- 
ited. Therefore, when the power of the Assembly to enact any par- 
ticular law is drawn into question, the proper inquiry is, whether 
such an exercise of the legislative power is clearly prohibited by the 
Constitution. The grant of power being general, the question is as to 
the existence of a limitation arising from special prohibition.” Baler 
v. Cincinnati, 11 Ohio St., 534-542 — Gholson, J. ; Lehman v. McBride, 15 
Ohio St., 573-592 ; Cincinnati v. McCann, 21 Ohio St., 198-207. Such 
prohibition must either be found in express terms, or be clearly infer- 
able, by necessary implication, from the language of the instrument, 
when fairly construed according to its manifest spirit and meaning. 
Cass v. Dillon, 2 Ohio St., 607 ; Evans v. Dudley, 1 Ohio St., 437 ; Lehman 
v. McBride, 15 Ohio St., 573-592. But the General Assembly, like other 
departments of government, exercise only delegated authority ; and 
any act passed by it not falling fairly within the scope of “ legislative 
authority,” is as clearly void as though expressly prohibited. C. W. & 
Z. R. R. Co. v. Com. of Clinton Co., 1 Ohio St., 77. 

The power to authorize assessments, as distinguished from taxes 
proper, is comprehended in the general grant of legislative power to 
the General Assembly. Reeves v. Treas. of Wood Co., 8 Ohio St., 333. 

The power to authorize assessments for the construction of free 
turnpike roads, and the opening of drains, as well as for the improve- 


Powers re- 
served to the 
people. 


In whom 
legislative 
power is 
vested. 


58 


CONSTITUTION OF OHIO, 1851. 


ment of streets and sidewalks, exists to the same extent under the 
present Constitution as under that of 1802. Ib. 

“The enactment of laws for the inspection of commodities is the ex- 
ercise of a legislative power recognized and sanctioned by long and un- 
questioned usage here and elsewhere, and is included in the general 
grant of legislative power conferred by the Constitution upon the Gen- 
eral Assembly ; and among the general, if not the invariable, incidents 
and characteristic features of this class of laws, is the imposition of a 
charge upon the owners or possessors of the commodities inspected, 
for the services of the inspector, although these services may have 
been rendered in invitum as to such owner or possessor. It is the 
legitimate exercise of governmental supervision over the business of 
the manufacturers and vendors of certain commodities, in order to 
protect the public, at home and abroad, against imposition and fraud, 
and, incidentally, to protect • manufacturers and vendors themselves 
against unfounded and unjust claims of vendees and consumers, as 
well as against the consequences of their own short-sighted cupidity.” 
Cincinnati Gas L. & C. Co. v. State, 18 Ohio St.,. 237-244 — BrinkerhofF, J. 

The acts of March 28, 1864 (61 O. L., 74), April 6, 1866 (63 0. L., 155), 
April 16, 1867 (64 0. L., 231), authorizing county commissioners, town- 
ship trustees and city councils to levy a tax for the payment of boun- 
ties to volunteers, are authorized by the general grant of legislative 
power. Cass Tp. v. Dillon, 16 Ohio St., 38; State v. Harris, 17 Ohio St., 
608 ; State v. Wilkesville Tp., 20 Ohio St., 288 ; State v. Richland Tp., Ib. ; 
State v. Circleville, Ib., 362. 

(2) The power of the General Assembly to pass laws cannot be 
delegated by them to any other body, or to the people. C. }V. & Z. R. 
R. Co. v. Com. of Clinton Co., 1 Ohio St., 77. But an act authorizing 
county commissioners to subscribe to the capital stock of a railroad 
company (enacted under the Constitution of 1802), does not delegate 
legislative power in providing that the subscription shall not be made 
until the assent of a majority of the electors of the county is first 
obtained at an election held for that purpose. Ib. 

1 Debates, 163-166, 168-171; 2 Debates, 141,318,560,632, 664,807, 
831, 857, 870. 


When 

chosen. 


Residence. 


Eligibility. 


Sec. 2. Senators and representatives shall be elected 
biennially, by the electors in the respective counties or dis- 
tricts, on the second Tuesday of October ; their term of office 
shall commence on the first day of January next thereafter, 
and continue two years. {See Const. 1802, Art. I , §§ 3, 5.) 

1 Debates, 171-179, 181-226 ; 2 Debates, 141-149, 318, 560, 
632, 664, 807, 831, 857, 870. 

Sec. 3. Senators and respresentatives shall have resided 
in their respective counties, or districts, one year next pre- 
ceding their election, unless they shall have been absent on 
the public business of the United States, or of this state. 
{See Const. 1802, Art. I, §§ 4, 7.) 

1 Debates, 163, 217, 218, 226-228; 2 Debates, 142, 149,215, 
318, 560, 632, 664, 807, 831, 857, 870. 

Sec. 4. No person holding office under the authority of 
the United States, or any lucrative office under the authority 


















CONSTITUTION OF OHIO, 1851. 


59 


of this state, shall be eligible to, or have a seat in, the gen- 
eral assembly ; but this provision shall not extend to town- 
ship officers, justices of the peace, notaries public, or officers 
of the militia. {See Const. 1802, Art. 7, § 26.) 

1 Debates, 163, 257, 258 ; 2 Debates, 164, 182-185, 318, 567, 
633, 664, 807, 831, 857, 870. 

Sec. 5. No person hereafter convicted of an embezzle- 
ment of the public funds, shall hold any office in this state ; 
nor shall any person, holding public money for disburse- 
ment, or otherwise, have a seat in the general assembly, 
until he shall have accounted for, and paid such money into 
the treasurv. {See Const. 1802, Art. 7, § 28.) 

1 Debates, 163, 164, 258 ; 2 Debates, 164, 318, 567, 568, 577, 
578, 633, 664, 807, 831, 857, 870. 

Sec. 6. Each house shall be judge of the election, re- 
turns, and qualifications of its own members ; a majority of 
all the members elected to each house shall be a quorum to 
do business ; but a less number may adjourn from day to 
day, and compel the attendance of absent members, in such 
manner, and under such penalties, as shall be prescribed by 
law. {See Const. 1802, Art. 7, § 8.) 

1 Debates, 163, 228, 229 ; 2 Debates, 149, 150, 219, 220, 318, 
560, 632, 664, 807, 831, 832, 857, 870. 

Sec. 7. The mode of organizing the house of representa- 
tives, at the commencement of each regular session, shall be 
prescribed by law. {See Const. 1802, Art. 7, § 8.) 

2 Debates, 214, 215, 634, 664, 807, 832, 857, 870. 

Sec. 8. Each house, except as otherwise provided in this 
constitution, shall choose its own officers, may determine its 
own rules of proceeding, punish its members for disorderly 
Conduct; and, with the concurrence of two-thirds, expel a 
member, but not the second time for the same cause ; and 
shall have all other powers, necessary to provide for its 
safety, and the undisturbed transaction of its business. {See 
Const. 1802, Art. 7, § 11.) 

1 Debates, 163, 229 ; 2 Debates, 220, 240, 318, 560, 632, 664, 
807, 832, 857, 870. 

Sec. 9. Each house shall keep a, correct journal of its 
proceedings, which shall be published. At the desire of any 
two membeis, the yeas and nays shall be entered upon the 
journal ; and, on the passage of every bill, in either house, 
the vote shall be taken by yeas and nays, and entered upon 
the journal; and no law shall be passed, in either house, 
without the concurrence of a majority of all the members 
elected thereto. {See Const. 1802, Art . 7, § 9.) 

No bill can become a law without receiving the number of votes 
required by the Constitution ; and if it were found by an inspection of 
the legislative journals, that what purports to be a law upon the stat- 
ute book, was not passed by the requisite number of votes, it might 
possible' be the duty of the courts to treat it as a nullity. But it does 
not follow that an act that was passed by a constitutional majority is 
invalid, because, in its consideration, the Assembly did not strictly ob- 
serve the mode of procedure prescribed by the Constitution. There 


Who shall 
not hold 
office. 


Powers of 
each house. 


Organiza- 
tion of house 
of represent- 
atives. 

Rules and 
right of pun- 
ishment and 
expulsion. 


Journal and 
yeas and 
hays. 


60 


CONSTITUTION OF OHIO, 1851. 


Right of 
members to 
protest. 


Vacancies 
in either 
house, how 
filled. 


Privilege of 
members 
from arrest, 
and of 
speech. 


When ses- 
sion to be 
public. 


Power of ad- 
journment. 


are provisions in that instrument that are directory in their character, 
the observance of which by the Assembly is secured by their sense of 
duty and official oaths, and not by any supervisory power of the courts. 
Fordycev. Godman, 20 Ohio St., 1-17 ; Miller v. State, 3 Ohio St., 475. 

“The legislative journals furnish the appropriate evidence on the 
question whether a bill has been passed by the requisite number of 
votes. Were it otherwise, a bill might become a law without receiving 
the number of votes required by the Constitution. A single presiding 
officer might by his signature give the force of law to a bill which the 
journal of the body over which he presides, and which is kept under 
the supervision of the whole body, shows not-to have been voted for 
by the. constitutional number of members. The plain provisions of 
the Constitution are not to be thus nullified, and the evidence which 
it requires to be kept under the supervision of the collective body, 
must control when a question arises as to the due passage of a bill.” 
Fordyce v. Godman , 20 Ohio St., 1-17 — Scott, J. ; and see State v. Moffatt , 
5 Ohio, 358 ; 3 Ohio St., 475. 

In the absence of all showing to the contrary, a law will be presumed 
to have been passed by the requisite number of votes. Miller v. State, 
3 Ohio St., 475 ; Steamboat Northern Indiana v. Millikin, 7 Ohio St., 383. 

1 Debates, 163, 229, 230 ; 2 Debates, 150, 318, 560, 577, 632, 664, 807, 
825, 832, 858, 870. 

Sec. 10. Any member of either house shall have the 
right to protest against any act, or resolution thereof ; and 
such protest, and the reasons therefor, shall, without altera- 
tion, commitment, or delay, be entered upon the journal. 
( See Const. 1802, Art. I, § 10.) 

1 Debates, 163, 230, 232 ; 2 Debates, 150, 214, 318, 560, 633, 
664, 807, 832, 858, 870. 

Sec. 11. All vacancies which may happen in either 
house shall, for the unexpired term, be filled by election, as 
■shall be directed by law. ( See Const. 1802, Art. I , § 12.) 

1 Debates, 163, 232; 2 Debates, 150, 318, 560, 633, 664, 
807, 832, 858, 870. 

Sec. 12. Senators and representatives, during the session 
of the general assembly, and in going to, and returning from 
the same, shall be privileged from arrest, in all cases, except 
treason, felony, or breach of the peace ; and for any speech, 
or debate, in either house, they shall not be questioned else- 
where. ( See Const. 1802, Art. 1 , § 13.) 

1 Debates, 163, 232 ; 2 Debates, 318, 560, 633, 664, 807, 832, 
858, 870. 

Sec. 13. The proceedings of both houses shall be public, 
except in cases which, in the opinion of two-thirds of those 
present, require secrecy. (See Const. 1802, Art. /, § 15.) 

1 Debates, 163, 232, 233 ; 2 Debates, 150, 318, 560, 633, 664, 
807, 832, 858, 870. 

Sec. 14. Neither house shall, without the consent of the 
other, adjourn for more than two days, Sundays excluded ; 
nor to any other place than that, in which the two houses 
shall be in session. ( See Const. 1802, Art. J, § 15.) 

1 Debates, 163, 233; 2 Debates, 150, 318, 560, 633, 664, 807, 
832, 858, 870. 



















































































































































































































































CONSTITUTION OF OHIO, 1851. 


()1 


Sec. 15. Bills may originate in either house; but may 
be altered, amended, or rejected in the other. ( See Const. 
1802, Art. J, § 16.) 

1 Debates, 163, 233; 2 Debates, 150, 318, 560, 633, 664, 807, 
832, 858, 870. 

Sec. 16. Every bill shall be fully and distinctly read, on 
three different days, unless, in case of urgency, three-fourths 
of the house, in which it shall be pending, shall dispense 
with this rule. (1) * No bill shall contain more than one sub- 
ject, which shall be clearly expressed in its title; (2) and 
no law shall be revived, or amended, unless the new act 
contain the entire act revived, or the section or sections 
amended; (3) and the section, or sections, so amended, shall 
be repealed. (4) {See Const. 1802, Art. I, § 17.) 

(1) This section does not require that every amendment to a bill 
shall be read three times. Miller v. State, 3 Ohio St., 475. (See next 
note.) 

(2) This provision was incorporated into the Constitution for the 
purpose of making it a permanent rule of the Houses, and to operate 
only on bills in their progress through the General Assembly. It is 
directory only, and the supervision of its observance must be left to 
the General Assembly. Pim v. Nicholson, 6 Ohio St., 176. The same 
is equally true of the provision tnat “ every bill shall be fully and dis- 
tinctly read on three different days.” Miller v. State, 3 Ohio St., 475- 
483. 

Every reasonable intendment is to be made in favor of the proceed- 
ings of the Legislature. It is not to be presumed that the Assembly, 
or either House of it, has violated the Constitution. When, therefore, 
it appears by the journals that a bill was amended by striking out all 
after the enacting clause and inserting a “new bill,” so called, it cannot 
be presumed that the matter inserted was upon a different subject from 
that stricken out; especially when the matter ' inserted is consistent 
with the title borne by the bill before such amendment. This is the 
more obvious, since the Constitution provides that “no bill shall con- 
tain more than one subject, which shall be clearly expressed in its 
title.” Nor does the fact that the inserted matter is called a “ new bill,” 
prove that it was not an amendment. Miller v. State, 3 Ohio St., 475. 

(3) “ This provision was inserted, mainly, to prevent improvident 
legislation; and with that view, as well as for the purpose of making 
all acts, when amended, intelligible, without an examination of the 
statute as it stood prior to the amendment, it requires every section, 
which is intended to supersede a former one, to be fully set out. No 
amendments are to be made by directing specified words or clauses to 
be stricken from or inserted in a section of a prior statute which may 
be referred to ; but the new act must contain the section as amended — 
not the section or sections which it proposes to amend, but the section 
or sections in full, as it purports to amend them. That is, it requires 
not a recital of the old section, but a full statement in terms of the 
new one.” Lehman v. McBride, 15 Ohio St., 573-602, 603 — Scott, J. 

(4) This clause is directory only to the General Assembly, and was 


Where bills 
shall origi- 
nate. 


Bills to be 
read three 
times. 

Not to con- 
tain more 
than one 
subject. 

Acts revived 
or amended. 


CONSTITUTION OF OHIO, 1851. 


62 


To be signed 
by presiding 
officers. 


Style of laws. 


Exclusion 
from office. 


t 


Term of 
office, and 
compensa- 
tion of offi- 
cers in cer- 
tain cases. 


not intended to abrogate the long-established rule as to repeals by im- 
plication. Lehman v. McBride, 15 Ohio St., 573. 

1 Debates, 163, 233, 297 ; 2 Debates, 150, 151, 318, 560, 561, 633, 664, 
807, 825, 832, 858, 870. 

Sec. 17. The presiding officer of each house shall sign, 
publicly in the presence of the house over which he presides, 
while the same is in session, and capable of transacting 
business, all bills and joint resolutions passed by the gene- 
ral assembly. ( See Const. 1802, Art. /, § 17.) 

1 Debates, 293 ; 2 Debates, 182, 318, 634, 664, 807, 832, 858, 
870. 

Sec. 18. The style of the laws of this state shall be, “Be 
it enacted hy the General Assembly of the State of Ohio.” ( See 
Const. 1802, Art. /, § 18.) 

1 Debates, 163, 171, 233; 2 Debates, 318, 561, 633, 664, 807, 
832, 858, 870. 

Sec. 19. No senator or representative shall, during the 
term for which he shall have been elected, or for one year 
thereafter, be appointed to any civil office under this state, 
which shall be created or the emoluments of which shall 
have been increased, during the term for which he shall 
have been elected. ( See Const. 1802, Art. 1 , § 20.) 

1 Debates, 163, 234-236 ; 2 Debates, 151, 318, 562, 563, 577, 
633, 664, 807, 832, 858, 870. 

Sec. 20. The general assembly, in cases not provided for 
in this constitution, shall fix the term of office and the com- 
pensation of all officers ; (1) but no change therein shall 
affect the salary (2) of any officer during his existing term, 
unless the office be abolished. 

(1) The act of May 1, 1862 (59 O. L., 104), prescribing the fees of 
county auditors, “is not in conflict with this section nor with section 
twenty-six of this article.” Cricket v. State, 18 Ohio St., 9. 

“The duty enjoined by this section in regard to fixing the compen- 
sation of officers, does not require the General Assembly to fix the 
sum or amount which each officer is to receive, but only requires that 
it shall prescribe or fix the rule by which such compensation is to be 
determined.” Ib. 21 — White, J. 

The act of May 4, 1869 (66 O. L., 80), authorizing the courts to appoint 
trustees to carry out the provisions of the act and to fix their compen- 
sation, is not in conflict with this provision. The trustees, for whose 
appointment it provides, are not public officers within the meaning of 
this provision. Walker v. Cincinnati, 21 Ohio St., 14. 

“This clause cannot be regarded as comprehending more than such 
officers as may be created to aid in the permanent administration of 
the government. It cannot include all the agencies which the General 
Assembly may authorize municipal and other corporations tp employ 
for local and temporary purposes.” Ib. 51 — Scott, C. J. 

The case of a clerk of the court holding his office by appointment to 
fill a vacancy, is one of the cases in which the Constitution has not 
fixed the term of office, but left that to be done by the Legislature. 
State v. Neibling, 6 Ohio St., 40-43 — Bartley, C. J. 






CONSTITUTION OF OHIO, 1851. 


63 


(2) It is manifest from the change of expression in the two clauses 
of the section, that the word “salary” was not used in a general sense, 
embracing any compensation fixed for an officer, hut in its limited 
sense, of an annual or periodical payment for services — a payment de- 
pendent on the time, and not on the amount of the service rendered. 

Where the compensation is to be ascertained by a percentage on the 
amount of money received and disbursed, it is not a salary within the 
meaning of this section. Thompson v. Phillips , 12 Ohio St., 617, 618. 

1 Debates, 163, 233, 234; 2 Debates, 151, 318, 561, 562, 577, 633, 663, 

664, 807, 832, 858, 870. 

Sec. 21. The general assembly shall determine, by law, Contested 
before what authority, and in what manner, the trial of elections, 
contested elections shall be conducted. 

A specific mode of contesting elections in this state having been pro- 
vided by statute, according to this requirement of the Constitution, 
that mode alone can be resorted to, in exclusion of the common law' 
mode of inquiry by proceedings in quo warranto. The statute w hich 
gives this special remedy and prescribes the mode of its exercise binds 
the state, as well as individuals. State v. Marlow , 15 Ohio St., 114. 

2 Debates, 228, 318, 563, 564, 577, 633, 664, 807, 832, 858, 870. 

Sec. 22. No money shall be drawn from the treasury, Appropria- 
except in pursuance of a specific appropriation, made by tions. 
law ; and no appropriation shall be made for a longer period 
than two years. ( See Const. 1802, Art. /, § 21.) 

No officer of the state can enter into any contract, except in cases 
specified in the Constitution, whereby the General Assembly will, tw'O 
years after, he bound to make appropriations, either for a particular 
object or a fixed amount ; the pow T er and the discretion, intact, to 
make appropriations, in general, devolving on each biennial General 
Assembly, and for the period of tw T o years. State v. Medbery, 7 Ohio 
St., 522. 

“ The sole power of making appropriations of the public revenue is 
vested in the General Assembly. It is the setting apart and appropri- 
ating by law a specified amount of the revenue for the payment of the 
liabilities which may accrue or have accrued. No claim against the 
state can be paid, no matter how r just or how long it may have re- 
mained overdue, unless there has been a specific appropriation made 
by law^ to meet it. By virtue of this power of appropriation, the Gen- 
eral Assembly exercise their discretion in determining, not only w T hat 
claims against, or debts of the state shall be paid ; but the amount of 
expenses which may be incurred. If they authorize expenses or debts 
to be incurred, without an appropriation to pay them, and the ex- 
penses are incurred, those expenses create a debt against the state, and 
it must remain such, until payment under an appropriation afterward 
made. The General .Assembly usually, how T ever, provide for the cur- 
rent expenses for a period not exceeding tw r o years, out of the incom- 
ing revenues, by making appropriations of a sufficient amount of 
money to pay the expenses during that period, and provide by law for 


66 


CONSTITUTION OF OHIO, 1851. 


fore not inconsistent with the present Constitution of the state, by 
reason of its not having a uniform operation throughout the state, so 
as to be repealed by implication. Ruffner v. Com. of Hamilton Co., 1 
Disney’s Rep., 39, 197. 

Nor is the act of March 7, 1835 (S. & C., 444), to amend the act enti- 
tled “ An act for the more effectual punishment of certain offenses in 
the county of Hamilton,” so in conflict with this section as to be 
thereby abrogated. This section had, at the adoption of the Constitu- 
tion, only a prospective, and not a retrospective, effect upon legislation. 
Allbyer v. State, 10 Ohio St., 588. 

The act of May 1, 1862 (59 0. L., 104), “ prescribing the fees of county 
auditors,” is not in conflict with this section. Cricket v. State, 18 Ohio 
St., 9. This section clearly was not intended to require that an act 
providing a new rule of compensation of officers subsequently coming 
into office should be invalid, unless it also applied to the future ser- 
vices of existing officers. Ib., 22. 

The act of April 6, 1870 (67 O. L., 36), “ limiting the compensation 
of certain officers therein named,” and the supplemental act of April 
12, 1871 (68 O. L., 58), and which can only operate in Hamilton county, 
are not laws of a general, but of a local nature, and are therefore not 
in conflict with this section. State v. Judges, 21 Ohio St., 1. 

An act of the General Assembly that operates only upon all cities in 
the state of the first class having, at the last federal census, less than 
one hundred thousand inhabitants, does not contravene this section. 
Welker v. Potter, 18 Ohio St., 85. 

The act of the General Assembly of April 9, 1856, “ to restore to the 
court of common pleas the jurisdiction of minor offenses in certain 
counties in the state ” (53 0. L., 107), being general in its nature, and yet 
limited in express terms to a part of the counties of the state, is in con- 
flict with this provision. Kelley v. State, 6 Ohio St., 269. The courts of 
common pleas in Ohio being an organization of a general nature, and 
having by law jurisdiction over every citizen, the laws which relate to 
and regulate their jurisdiction and organization are law T s of a general 
nature, and are imperatively required to have a uniform operation 
throughout the state. Ib., 272. (See Art. IV, § 8. Note.) 

(2) “ Of the term ‘ uniform operation,’ it w r ould be difficult to give 
any satisfactory general definition. It is not confined to the taking 
effect and being a law throughout the state, for every law may be said 
to have that operation. Is it sufficient that it may operate uniformly 
at the discretion of different and distinct bodies throughout the state ? 
In other words, is a mere power to act upon subject matters, in their 
nature distinct and different, though it may be of a like kind, the uni- 
form operation of a law? Does the operation of the law consist in its 
effect on those who, by its means, are affected in person or estate, or 
in the grant of a power to produce the effect? If a like power be given 
to bodies created for the purpose in all the counties of the state ; but 
the exercise of the power depends on the discretion of those bodies, 
and in some counties it may be exercised, and in some it may not ; in 
some counties it may be exercised to a certain extent, and in others to a 
different extent, involving heavy burdens upon the people, or light, as 
the discretion of those acting under the pow r er shall determine. Does 


























. 











. 




































































* 


















' ' 





































CONSTITUTION OF OHIO, 1851. 


G 


“ There appears to be a clear distinction between a general law and 
a law T of a general nature. It might be in the power of the Legislature 
to confer on many laws the form of a general law* ; but the nature of a 
law, whether general or local and special, is inherent in the law itself, 
and a matter which the Legislature can neither give nor take away by 
the manner in which it is passed or published. Whether, therefore, 
any law be a law of a general nature, will depend on the provisions of 
the law, and be a matter of judicial construction. The laws of a gen- 
eral nature are intended to have a uniform operation throughout the 
state. Laws, therefore, which from their nature cannot operate uni- 
formly throughout the state, cannot be embraced under the expression 
of laws of a general nature. The Legislature may provide, by general 
laws, for matters in their nature local. Indeed, as to some matters, the 
Legislature, it has been supposed, are required so to do by the Consti- 
tution, as in the case of the organization of cities and villages. How- 
ever general some of the laws on this subject are in form, they are in 
their nature essentially special, and must of necessity be local and par- 
tial in their operation. Except as to some specified matters, the Legis- 
lature is not prohibited from passing local and special laws, as to mat- 
ters in their nature local and special. The prohibition is not to confine 
a law, in its nature general, to a particular locality ; or not to except 
from the operation of a law of a general nature a particular locality. If, 
therefore, any subject matter is in its nature local, requiring special 
legislation, this section does not prohibit special legislation on that 
subject. The Legislature is not required to provide for every local and 
special matter by general laws, whenever it can be done, but are pre- 
vented from restricting the operations of laws of a general nature to 
any part of the state less than the whole. Such laws, when enacted, 
are to have a uniform operation throughout the state; their operation 
cannot be confined to one county or to fifty counties. Laws conferring 
power on the county commissioners to erect public buildings, cannot 
be considered laws of a general nature, having a uniform opera- 
tion throughout the state. Laws regulating those matters in the gov- 
ernment of the counties of a state, in their nature different, depending 
on taste and discretion, as to which no uniform rule can be prescribed, 
must be, in their nature, special. In the absence of any express pro- 
vision of the Constitution, that the counties of the state shall be gov- 
erned alike, by the same general laws, I can see no reason why special 
laws for the purpose may not be passed. If special laws on the sub- 
ject can be passed, then no general law that is passed is, necessarily, a 
law of a general nature. Undoubtedly, laws having for their object the 
regulation of the counties of the state, may be of a general nature, and 
have a uniform operation. In the same act, one part may contain a 
law of that description, and another part a law in its nature special.” 
Ruffner v. Com. of Hamilton Co., 1 Disney’s Rep., 196-202, 205 — Ghol- 
son, J. 

The local act of February 24, 1848, “ relating to the duties and powers 
of the county commissioners of Hamilton county ” (Local Statutes, vol. 
46, 267), prescribing the mode in which the commissioners of that 
county shall make contracts, is not of a general nature, and is there- 


o 


66 


CONSTITUTION OF OHIO, 1851. 


fore not inconsistent with the present Constitution of the state, by 
reason of its not having a uniform operation throughout the state, so 
as to be repealed by implication. Ruffner v. Com. of Hamilton Co., 1 
Disney’s Rep., 39, 197. 

Nor is the act of March 7, 1835 (S. & C., 444), to amend the act enti- 
tled “An act for the more effectual punishment of certain offenses in 
the county of Hamilton,” so in conflict with this section as to be 
thereby abrogated. This section had, at the adoption of the Constitu- 
tion, only a prospective, and not a retrospective, effect upon legislation. 
Allbyer v. State, 10 Ohio St., 588. 

The act of May 1, 1862 (59 0. L., 104), “ prescribing the fees of county 
auditors,” is not in conflict w r ith this section. Cricket v. State, 18 Ohio 
St., 9. This section clearly was not intended to require that an act 
providing a new rule of compensation of officers subsequently coming 
into office should be invalid, unless it also applied to the future ser- 
vices of existing officers. Ib., 22. 

The act of April 6, 1870 (67 O. L., 36), “ limiting the compensation 
of certain officers therein named,” and the supplemental act of April 
12, 1871 (68 O. L., 58), and which can only operate in Hamilton county, 
are not laws of a general, but of a local nature, and are therefore not 
in conflict with this section. State v. Judges, 21 Ohio St., 1. 

An act of the General Assembly that operates only upon all cities in 
the state of the first class having, at the last federal census, less than 
one hundred thousand inhabitants, does not contravene this section. 
Welker v. Potter, 18 Ohio St., 85. 

The act of the General Assembly of April 9, 1856, “ to restore to the 
court of common pleas the jurisdiction of minor offenses in certain 
counties in the state ” (53 O. L., 107), being general in its nature, and yet 
limited in express terms to a part of the counties of the state, is in con- 
flict w T ith this provision. Kelley v. State, 6 Ohio St., 269. The courts of 
common pleas in Ohio being an organization of a general nature, and 
having by law jurisdiction over every citizen, the laws which relate to 
and regulate their jurisdiction and organization are law r s of a general 
nature, and are imperatively required to have a uniform operation 
throughout the state. Ib., 272. ( See Art. IV, § 8. Note.) 

(2) “ Of the term ‘ uniform operation,’ it w T ould be difficult to give 
any satisfactory general definition. It is not confined to the taking 
effect and being a law throughout the state, for every law may be said 
to have that operation. Is it sufficient that it may operate uniformly 
at the discretion of different and distinct bodies throughout the state ? 
In other w r ords, is a mere power to act upon subject matters, in their 
nature distinct and different, though it may be of a like kind, the uni- 
form operation of a law? Does the operation of the law consist in its 
effect on those who, by its means, are affected in person or estate, or 
in the grant of a power to produce the effect? If a like power be given 
to bodies created for the purpose in all the counties of the state ; but 
the exercise of the power depends on the discretion of those bodies, 
and in some counties it may be exercised, and in some it may not ; in 
some counties it may be exercised to a certain extent, and in others to a 
different extent, involving heavy burdens upon the people, or light, as 
the discretion of those acting under the powder shall determine. Does 








CONSTITUTION OF OHIO, 1851. 


67 


the operation of the law consist in the grant of power' or its exercise? 
If in the latter, it seems clear that such a law is not one having a 
uniform operation throughout the state. From its nature, it cannot 
have a uniform operation ; and if so, then it cannot be a law of a gen- 
eral nature, within the meaning of the Constitution. It may be a gen- 
eral law, because, in general terms, and by a general description, appli- 
cable to all, it confers powers upon distinct bodies of men ; but as these 
bodies of men may, and indeed, in many cases, of necessity must, ex- 
ercise the power differently, and to a different extent, and with differ- 
ent effect on those to be affected, it is not a law of a general nature.” 
Ruffner v. Com . of Hamilton Co., 1 Disney’s Rep., 196-204— Gholson, J. 

(3) In C. W. & Z. R. R. Co. v. Com. of Clinton Co., 1 Ohio St., 77-87, 
88, 89, Ranney, J., says that no one denies the proposition that the 
General Assembly cannot surrender any portion of the legislative au- 
thority with which it is invested, or authorize its exercise by any other 
person or body; that this inability arises no less from the general 
principle applicable to every delegated power requiring knowledge, 
discretion^ and rectitude in its exercise, than from the positive provi- 
sions of the Constitution itself ; that in determining whether a legisla- 
tive act contravenes this clause or not, the true distinction is between 
the delegation of the power to make the law, which necessarily in- 
volves a discretion as to what it shall be, and conferring an authority 
or discretion as to its execution, to be exercised under and in pursu- 
ance of the law ; that the first cannot be done ; that to the latter no 
valid objection can be made. In this case it was accordingly held, that 
an act authorizing the commissioners of a county to subscribe to the 
capital stock of a railroad company does not delegate legislative power 
or contravene the Constitution of 1802 (under which it was passed), 
nor the present Constitution, in providing that the subscription shall 
not be made until the assent of a majority of the electors of the county 
is first obtained at an election held for that purpose. 

The principle in such case is, that the act takes effect as soon as 
passed, and that, therefore, this provision of the Constitution does not 
apply, though the act provides for a vote of the people, as a condition 
precedent to the subscription. Cass v. Dillon, 2 Ohio St., 607 ; Thomp- 
son v. Kelley, lb. 647. The same rule is applicable to township sub- 
scriptions to the capital stock of railroad companies. S. & I. R. R. Co. 
v. North Tp., 1 Ohio St., 105. Or of plankroad companies. Loomis v. 
Spencer, lb. 153. And to an act providing for a vote upon the question 
of the removal of a county seat, as required by Art. II, Sec. 30, in 
which act are contained certain sections, authorizing the election, pre- 
scribing the manner of conducting it, and of making the returns, re- 
cording the results, etc. State v. Com. of Perry Co., 5 Ohio St., 497 ; 
Noble v. Com. of Noble Co., Ib. 524. And to a statute which requires a 
preliminary vote of the electors of a township, before an assessment 
for the purpose of paying for lands purchased for a township cemetery 
is made by the trustees. Paris Tp. v. Cherry, 8 Ohio St., 564. 

1 Debates, 164, 259 ; 2 Debates, 215-219, 221-228, 318, 568, 578, 579, 
633, 664, 807, 832, 858,870. 


68 


CONSTITUTION OF OHIO, 1851. 


Election 
and appoint- 
ment of offi- 
cers and the 
filling of va- 
cancies. 

Vote for U.S. 
senator to be 
viva voce. 


Sec. 27. The election and appointment of all officers, (1) 
and the filling of all vacancies, not otherwise provided for 
by this constitution, or the constitution of the United States, 
shall be made in such manner as may be directed by law ; (2) 
but no appointing power (3) shall be exercised by the gen- 
eral assembly, except as prescribed in this constitution, and 
in the election of United States senators ; and in these cases 
the vote shall be taken “viva voce ” 

(1) Emolument is a usual but not a necessary element to constitute 
an office. Authority and power relating to the public interests, con- 
ferred by statute, and which may be vested in a board or individuals 
by election or the appointing power of the state, create an office. State 
v. Kennon, 7 Ohio St., 547. 

(2) The General Assembly may by law direct the manner in which 
all offices existing or created by law or vacancies therein shall be filled 
by appointment, except in cases provided by the Constitution. Direct- 
ing by law the manner in which an appointment shall be made, and 
making an appointment, are the exercise of two different and distinct 
powers ; the one prescribing how an act shall be done, being legislative ; 
and the other, doing the act, being administrative. Ib. 546. 

(3) “The phrase ‘appointing power/ as here used, is one of no am- 
biguous signification. When employed in reference to matters per- 
taining to government, or to the distribution of the powers of gov- 
ernment, it means the power of appointment to office — the power to 
select and indicate by name individuals to hold office, and to discharge 
the duties and exercise the powers of officers. Theirs is a public duty, 
charge and trust, conferred by' public authority, for public purposes of 
a very weighty and important character. Their duties, their charge 
and trust, are not transient, occasional or incidental, but durable, per- 
manent and continuous.” Ib. 556 — Brinkerhoff, J. 

The statutes of April 12, 1858 (55 0. L., 122, 136), which provide for 
the creation of a board, authorizing it to appoint commissioners of the 
State House, and the directors of the penitentiary of the state, and to 
fill all vacancies which might occur in the offices of directors or State 
House commissioners, and authorizing such board or a majority to re- 
move any director of the penitentiary for causes specified, or which 
might by the board be deemed sufficient, created offices ; and conced- 
ing that the General Assembly could provide for the creation of such 
board and offices, yet the General Assembly could not exercise the 
power of appointing the officers of such board without exercising “ap- 
pointing power,” which is forbidden by the Constitution. The exer- 
cise of the power of appointment and removal of state officers, and 
the filling of vacancies which may occur in state offices, is a high pub- 
lic function and trust, and not a private, or casual, or incidental agency ; 
and the officers of a board so created by statute to exercise these pub- 
lic functions, are vested with official state power, and hold and exercise 
a public franchise and office. Ib. 547. 

The conferring of authority pn the judges of the Superior Court of 
Cincinnati to appoint trustees to carry out ftie purpose of the act of 
May 4, 1869 (66 0. L., 80), the coustruction of a railroad by that city, 




CONSTITUTION OF OHIO, 1851. 


is not the exercise of appointing power by the General Assembly, 
which this section forbids. It is not the creation of a new office, but 
the annexing of a new duty to an existing office. Walker v. Cincinnati , 

21 Ohio St., 15. (See Art. VII, § 2, Note.) 

1 Debates, 164, 259, 260 ; 2 Debates, 164, 318, 568, 569, 578, 590, 633, 

664, 807, 832, 858, 870. 

Sec. 28. The general assembly shall have no power to Retroactive 
pass retroactive laws,(l) or laws impairing the obligation of haws, 
contracts ; (2) but may, by general laws, authorize courts to 
carry into effect, upon such terms as shall be just and 
equitable, (3) the manifest intention (4) of parties, and offi- 
cers, (5) by curing omissions, defects, and errrors, in instru- 
ments and proceedings, arising out of their want of con- 
formity with the laws of this state. (6) ( See Const. 1802, Art. 

VIII , § 16.) 

(1) “ The words ‘ retrospective ’ and ‘ retroactive/ as applied to laws, 
seem to be synonymous. Justice Story thus defines a retrospective 
law: ‘Upon principle, every statute which takes away or impairs 
vested rights, acquired under existing laws, or creates a new obligation, 
imposes a new duty, or attaches a new disability, in respect to trans- 
actions or considerations already past, must be deemed retrospective.’ ” 

Rairden v. Holden, 15 Ohio St., 207-210 — Brinkerhoff, C. J. 

A statute purely remedial in its operation on pre-existing rights, 
obligations, duties and interests, is not within the mischiefs against 
which this clause of the Constitution was intended to guard, and is 
not, therefore, within a just construction of its terms. Green Tp. v. 

Campbell, 16 Ohio St., 11 ; Rairden v. Holden, 15 Ohio St., 207 ; Goshorn 
v. Purcell, 11 Ohio St., 641 ; Butler v. Toledo, 5 Ohio St., 225 ; Acheson 
• v. Miller, 2 Ohio St., 203 ; Trustees of C. F. R. E. A. v. McCaughy, lb., 

152 ; Kearny v. Buttles, 1 Ohio St., 362 ; Bartholomew v. Bentley, lb., 37 ; 

Lewis v. McElvain, 16 Ohio, 347 ; Johnson v. Bentley, lb., 97 ; Towsey v. 

Avery, 11 Ohio, 90; Hays v. Armstrong, 7 Ohio, 1 pt., 248. 

Statutes affecting substantial interests, and rights of property, have a 
prospective operation only, unless the contrary intention is clearly ex- 
pressed. Kelley v. Kelso, 5 Ohio St., 198. 

The acts of March 28, 1864 (61 O. L., 74), April 6, 1866 (63 O. L., 188), 
and April 16, 1867 (64 O. L., 231), providing for the payment of boun- 
ties to volunteers, have been declared not repugnant to this provision. 

State v. Richland Tp., 20 Ohio St., 362; Stale v. Wilkesville Tp., Ib., 288 ; 

State v. Harris, 17 Ohio St., 608 ; Cass Tp. v. Billon, 16 Ohio St., 39. 

Nor is the act of March 24, 1864 (61 0. L., 57), “ supplementary to the 
act entitled ‘ An act to provide for the locating, establishing and con- 
structing ditches, drains and water-courses.’ ” Miller v. Graham, 17 Ohio 
St., 1. Nor the act of April 7, 1854 (4 Curwen, 2571 ; S. & C., 619), con- 
cerning suits on the bond of executors and administrators. Rairden v. 

Holden, 15 Ohio St., 207. 

(2) The fifth section of the act of March 2, 1853 (51 O. L.,529), “ to 
provide for the removal of the county seat of Perry county from the 
town of New Lexington to the town of Somerset,” imposes upon the 
County of Perry a forfeiture of subsisting rights acquired under a legal 


70 


CONSTITUTION OF OHIO, 1851. 


contract, in the event of a majority vote against the removal of the 
seat of justice, and is, therefore, unconstitutional. State v. Com. of 
Perry Co., 5 Ohio St., 497. 

But the sixth section of the act of April 29, 1854 (52 0. L., 177), “ to 
provide for the permanent location of the seat of justice of Noble 
county, by the legal voters thereof, and for the erection of public build- 
ings therein,” provides only for the natural and necessary exigencies 
arising from fixing the county seat either at Olive or Sarahsville ; and 
which exigencies must have been in the contemplation of the voters, 
whether provided for by the act or not. This act is not in conflict with 
this provision of the Constitution. Noble v. Com. of Noble Co., 5 Ohio 
St., 524. 

The act of May 3, 1852 (50 0. L., 263), in relation to plankroad and 
turnpike companies, in so far as it undertakes to impose upon stock- 
holders, without their assent, individual liabilities not imposed by their 
charters, or by the law's under which they have been organized, is a 
law impairing the validity of the stockholders’ contract with the com- 
pany, and, therefore, unconstitutional. Ireland v. Palestine T. P . Co., 
19 Ohio St., 369. 

See also, as to the obligation of contracts, Phillips v. Dugan, 21 Ohio 
St., 466 ; Smith v. McKinney, 22 Ohio St., 200. As to the power of the 
General Assembly to alter, revise and amend the charters of incor- 
porated companies, see Const. 1802, Art. VIII, § 16, Notes. 

(3) This provision is permissive and not mandatory, and it still re- 
mains a question for the courts to determine under w r hat circumstances, 
on what principles of equity, they will give effect to an instrument or 
conveyance w r hich is invalid by law. Hout v. Hout, 20 Ohio St., 119. 

(4) “The intention must be manifest; but how manifested is not. 
expressed. The courts, under a direction to find the intention, with 
a view to the correction of an omission or defect, in analogy to like 
cases, would not act unless the intention w r as manifest ; and in view of 
this principle of law, it is probable the expression was used. It may 
happen that a mere inspection of the imperfect instrument will show 
what is the omission, defect or error, and make manifest the intention 
of the parties. But giving the strictest meaning to the expression, 

‘ manifest intention,’ as applied to a written instrument, we think the 
courts are not confined to a mere inspection of the instrument, as to 
which the omission, defect or error is alleged to exist, but are, at least, 
entitled to be placed in the same positiop as if called on to construe 
and give effect to a perfect instrument. The object being to ascertain 
if there be an omission, defect or error in the instrument, which has 
prevented the manifest intention of the parties from being carried into 
effect, the court may look to the subject matter, the connection of the 
parties with it, and surrounding circumstances at the time of the execu- 
tion of the instrument.” Goshorn v. Purcell, 11 Ohio St., 641-647, 648 — 
Gholson, J. 

(5) “The language of this proviso extends not only to omissions 
of officers in proceedings connected with the execution of deeds, 
but to omissions, defects and errors in deeds — to the omissions, 
not only of officers, but of parties. We should, therefore, look rather 
to the principle of justice and right, wdiich the rule w T as intended to 































CONSTITUTION OF OHIO, 1851. 


71 


enforce by an application to past transactions, than to particular in- 
stances in which a like application had been made, though historicelly 
connected with the adoption of the rule.” Ib., 650. 

(6) “ It is obvious that the instrument or proceeding must be one 

which, had there been no omission, defect or error, would have carried 
into effect the intention of the parties or officers. If the instrument or 
proceedings be such that, in the absence of any omission, defect or 
error, it would have been inoperative, then it cannot be regarded as 
within the meaning of the proviso. This is shown from the requisi- 
tion, that the omission, defector error must arise from the want of con- 
formity of the instrument or proceeding with the laws of the state. An 
instrument or proceeding which, having no omission, defect or error, 
would still not conform with the laws of the state, and, therefore, not 
carry into effect the intention, cannot be one of those intended. The 
proviso proceeds on the assumption that the instrument or proceeding, 
but for the omission, defect or error, would have conformed to the laws, 
and therefore have carried into effect the indention of the parties. It, 
therefore, does not extend to any instrument or proceeding not authorized 
by the laws of the state, as a valid and effectual expression of the in- 
tention of the parties. It does not authorize the General Assembly to 
give power or capacity to parties, not possessed when any instrument 
or proceeding was made or had. An attempt to do this would come 
within the prohibition against retroactive law r s.” Ib., 646, 647. 

“ The principle, in view of which the language of the proviso should 
be construed, would extend that language to cases where parties com- 
petent to carry their intention into effect, by an instrument or proceed- 
ing made or had in conformity with the laws of the state, attempt to do 
so, but fail on account of an omission, defect or T error ; and the intention 
being manifest, justice and equity require that it should not be defeated 
by such omission, defect or error. The parties must be competent, 
their intention must be manifest, it must be evinced by some act, by 
some instrument or proceeding, though imperfect from a want of con- 
formity with the law, and the relief must be upon just and equitable 
terms.” Ib., 650. 

In 1828, L., the wife of G., having a fee simple estate in land, joined 
with her husband in a deed intending to convey her estate to F. By 
mistake, her name was omitted in the granting clause of the deed. In 
1857, the General Assembly passed an act authorizing the court to cor- 
rect such a mistake in the deed of a married woman, though occurring 
before the passage of the act. Held, that the proviso in this section 
authorized such an enactment. Goshom v. Purcell, 11 Ohio St., 641; s. c. 
2 Disney’s Rep., 90; Miller v. Mine, 13 Ohio St., 565; Smith v. Turpin, 
20 Ohio St., 478. 

1 Debates, 164, 263-270, 273-284 ; 2 Debates, 165-175, 185-210, 240- 
281, 286, 318, 569, 589-593, 596, 597, 605-632, 664, 808, 832, 858, 870. 

Sec. 29. No extra compensation shall be made to any 
officer, public agent, or contractor, after the service shall 
have been rendered, or the contract entered into; nor shall 
any money be paid, on any claim, the subject matter of 
which shall not have been provided for by pre-existing law, 


No extra 
compensa- 
tion. 


72 


CONSTITUTION OF OHIO, 1851. 


New 

counties. 


Compensa- 
tion of mem- 
bers and offi- 
cers of the 
general 
assembly. 


unless such compensation, or claim, be allowed by two- 
thirds of the members elected to each branch of the general 
assembly. 

At the time of the raid through Ohio by the rebel forces, led by 
John H. Morgan, in 1863, and their destruction of private property, 
there was no subsisting law requiring or authorizing the payment by 
the state of the damages thereby occasioned to individuals ; and there- 
fore, under the provisions of this section, claims for such damages can 
not be paid out of the state treasury till allowed by the concurrent 
votes of two-thirds of the members elected to each branch of the Gen- 
eral Assembly. Upon the question whether such claims have been 
allowed by the number of members required by the Constitution, the 
legislative journals must furnish the appropriate evidence. Fordyce v. 
Godman, 20 Ohio St., 1. 

1 Debates, 164, 284, 285 ; 2 Debates, 318, 569-574, 578, 597, 633, 664, 

808, 832, 858, 870. t 

Sec. 30. No new county shall contain less than four 
hundred square miles of territory, nor shall any county be 
reduced below that amount ; and all laws creating new 
counties, changing county lines, or removing county seats, 
shall, before taking effect, be submitted to the electors of 
the several counties to be affected thereby, at the next gen- 
eral election after the passage thereof, and be adopted by a 
majority of all the electors voting at such election, in each 
of said counties ; but any county now or hereafter contain- 
ing one hundred thousand inhabitants, may be divided, 
whenever a majority of the voters residing in each of the 
proposed divisions shall approve of the law passed for that 
purpose ; but no town or city within the same shall be di- 
vided, nor shall either of the divisions contain less than 
twenty thousand inhabitants. (Fee Const. 1802, Art. VII, 
§ 3 .) 

The power to make new counties, and to change county lines, existed 
under the former Constitution. State v. Choate, 11 Ohio, 511. 

The act to erect the county of Noble, passed March 11, 1851, is not 
inconsistent with this Constitution, nor repealed by it. State v. Dudley, 
1 Ohio St., 437. Nor does the act of March 29, 1866 (63 O. L., 58), “ to 
provide for the removal of the seat of justice of Wood county,” con- 
travene this provision. Peck v. Weddell, 17 Ohio St., 271 ; Powers v. Peed, 
19 Ohio St., 189. And see Art. II, Sec. 28, Note 2. 

2 Debates, 210, 211, 220, 240, 318, 574-581, 590, 633, 634, 653, 663, 664, 
808, 832, 858, 870. 

Sec. 31. The members and officers of the general assem- 
bly shall receive a fixed compensation, to be prescribed by 
law, and no other allowance or perquisites, either in the 
payment of postage or otherwise ; and no change in their 
compensation shall take effect during their term of office. 

1 Debates, 293-297; 2 Debates, 211-214, 318, 634, 653, 663, 
664, 808, 833, 858, 870. 









































































































































































































































































' 





































f 






















) 





■ 











CONSTITUTION OF OHIO, 1851. 

Sec. 32. The general assembly shall grant no divorce, 
nor exercise any judicial power not herein expressly con- 
ferred. 

The Constitution of 1802 contained no such prohibition ; but in 
Bingham v. Miller , 17 Ohio, 445, it was held that the Legislature had 
no power, by a special act, to grant a divorce, that being the exercise 
of a judicial, not a legislative function— a function not granted to the 
Legislature by the Constitution ; but that body having exercised the 
power for more than forty years, to avoid the consequences which 
would result from declaring all those void which had been granted by 
the Legislature — rendering illegitimate the issue of second marriages — 
the court would pronounce them valid. 

1 Debates, 164, 258, 259 ; 2 Debates, 164, 318, 568, 633, 664, 808, 833, 
858, 870. 


ARTICLE III. 

EXECUTIVE. 

Sec. 1. The executive department shall consist of a gov- 
ernor, lieutenant governor, secretary of state, auditor, treas- 
urer, and an attorney general, who shall be chosen by the 
electors of the state, on the second Tuesday of October, and 
at the places of votih'g for members of the general asesmbly. 
(■ See Const. 1802, Art. II, §§ 2, 16; Art. VI, § 2.) 

1 Debates, 299-302, 313, 323-327 ; 2 Debates, 287, 289, 293, 
294, 331-333, 349, 808, 834, 859, 870. 

Sec. 2. The governor, lieutenant governor, secretary of 
state, treasurer and attorney general shall hold their offices 
for two years ; and the auditor for four years. Their terms 
of office shall commence on the second Monday of January 
next after their election, and continue until their successors 
are elected and qualified. ( See Const. 1802, Art. II, §§ 3, 16.) 

1 Debates, 300, 306, 323-326, 335, 336; 2 Debates, 287, 289, 
293, 349, 808, 834, 835, 859, 870. 

Sec. 3. The returns of every election for the officers 
named in the foregoing section shall be sealed up and trans- 
mitted to the seat of government, by the returning officers, 
directed to the president of the senate, who, during the first 
week of the session, shall open and publish them, and de- 
clare the result, in the presence of a majority of the mem- 
bers of each house of the general assembly. The person 
having the highest number of votes shall be declared duly 
elected ; but if any two or more shall be highest, and equal 
in votes, for the same office, one of them shall be chosen by 
the joint vote of both houses. ( See Const. 1802, Art. II, § 2.) 

1 Debates, 30b, 306, 324; 2 Debates, 287, 808, 835, 859, 870.) 

Sec. 4. Should there be no session of the general assem- 
bly in January next after an election for any of the officers 
aforesaid, the returns of such election shall be made to the 
secretary of state, and opened, and the result declared by 
the governor, in such manner as may be provided by law. 

2 Debates, 349, 808, 835, 859, 870. 


73 

Divorces 
and judicial 
power. 


Executive 

department. 


Term of 
office. 


Election 

returns. 


Same 

subject. 


74 

Executive 
power 
vested in 
governor. 


He may re- 
quire writ- 
ten informa- 
tion, etc. 


He shall 
recommend 
measures, 
etc. 


When and 
how he may 
convene the 
general 
assembly. 


When he 
may adjourn 
the general 
assembly. 


CONSTITUTION OF OHIO, 1851. 

Sec. 5. The supreme executive power of this state shall 
be vested in the governor. ( See Const. 1802, Art. II, § 1.) 

Although the Governor, in the exercise of the supreme executive 
power of the state, may, from the nature of his authority, have a dis- 
cretion which cannot be controlled by judicial power, yet in regard to 
a ministerial act, which might have been devolved on any other officer 
of the state, and affecting any specific private right, he may be made 
amenable to the compulsory power of the courts. State v. Chase, 5 Ohio 
St., 528. “ Under our system of government, no officer is placed above 

the restraining authority of the law, which is truly said to be univer- 
sal in its behests — ‘ all paying it homage, the least as feeling its care, 
and the greatest as not exempt from its power.’ The judicial power 
cannot interpose and direct in regard to the performance of an official 
act which rests in the discretion of any officer, whether executive, 
legislative or judicial. The constitutional provision declaring that ‘ the 
supreme executive power of this state shall be vested in the Governor,’ 
clothes the Governor with important political powers, in the exercise 
of which he uses his own judgment or discretion, and in regard to 
which his determinations are conclusive. But there is nothing in the 
nature of the chief executive office of this state which prevents the per- 
formance of some duties merely ministerial being enjoined on the Gov- 
ernor. While the authority of the Governor is supreme in the exer- 
cise of his political and executive functions, which depend on the ex- 
ercise of his own judgment or discretion, the authority of the judiciary 
of the state is supreme in the determination of all legal questions in- 
volved in any matter judicially brought before it. Although the state 
cannot be sued, there is nothing in the nature of the office of Governor 
which prevents the prosecution of a suit against the person engaged in 
discharging its duties.” Ib., 534, 535 — Bartley, C. J. 

1 Debates, 299, 302 ; 2 Debates, 808, 835, 859, 870. 

Sec. 6. He may require information, in writing, from the 
officers in the executive department, upon any subject re- 
lating to the duties of their respective offices ; and shall see 
that the laws are faithfully executed. ( See Const. 1802, Art. 
II, § 7.) 

1 Debates, 300, 306 ; 2 Debates, 808, 835, 859, 870. 

Sec. 7. He shall communicate at every session, by mes- 
sage, to the general assembly, the condition of the state, and 
recommend such measures as he shall deem expedient. (See 
Const. 1802, Art. II, § 4.) 

1 Debates, 300, 306, 324; 2 Debates, 28*7, 808, 835, 859, 870. 

Sec. 8. He may, on extraordinary occasions, convene the 
general assembly by proclamation, and shall state to both 
houses, when assembled, the- purpose for which they have 
been convened. ( See Const. 1802, Art. II, § 9.) 

1 Debates, 300, 306, 324, 336 ; 2 Debates, 287, 288, 808, 835, 
859, 870. 

Sec, 9. In case of disagreement between the two houses, 
in respect to the time of adjournment, he shall have power 
to adjourn the general assembly to such time as he may 









* 









































































































































































CONSTITUTION OF OHIO, 1851. 

think proper, but not beyond the regular meetings thereof. 
{See Const. 1802, Art. II , § 11.) 

1 Debates, 300, 306, 324 ; 2 Debates, 288, 808, 835, 859, 870. 

Sec. 10. He shall be commander-in-chief of the military 
and naval forces of the state, except when they shall be 
called into the service of the United States. ( See Const. 
1802, Art. II, § 10.) 

1 Debates, 300, 306; 2 Debates, 808, 835, 859, 870. 

Sec. 11. He shall have power, after conviction, to grant 
reprieves, commutations, and pardons, for all crimes and 
offenses, except treason and cases of impeachment, upon 
such conditions as he may think proper ; subject, however, 
to such regulations, as to the manner of applying for par- 
dons, as may be prescribed by law. Upon conviction for 
treason, he may suspend the execution of the sentence, and 
report the case to the general assembly, at its next meeting, 
when the general assembly shall either pardon, commute the 
sentence, direct its execution, or grant a further reprieve. 
He shall communicate to the general assembly, at every 
regular session, each case of reprieve, commutation or par- 
don granted, stating the name and crime of the convict, the 
sentence, its date, and the date of the commutation, pardon, 
or reprieve, with his reasons therefor. {See Const. 1802, Art. 
II, § 5.) 

“ The government is represented by the executive, to whom is solely 
confided the discretion when the prerogative is to be exercised. It is 
his function to grant or withhold the act of clemency, whether it be 
the remission of a pecuniary penalty, the commutation of a sentence, 
or the liberation of the prisoner. It is conceded that the power of 
absolute pardon is given to the executive, and this admission, as a gen- 
eral rule, would include the power to remit a portion of the punish- 
ment, or to modify it, as the circumstances of the particular case may 
properly suggest. Such, we might readily suppose, would be the re- 
sult, whenever the general authority is granted ; nor can we find any 
difficulty in arriving at the conclusion, that if the right to restrict or 
modify, or release the punishment, in whole or in part, exists, the 
power to annex a condition to the favor conferred is not a necessary 
sequence.” Ex parte Lockhart, 1 Disney’s Rep., 105-108 — Storer, J. 
(See Art. I, § 12, Note 1.) 

The act of February 1, 1853 (S. & C., 708), giving to parties impris- 
oned for non-payment of fines the benefit of the laws for the relief of 
insolvent debtors, and authorizing their discharge as such, is not an 
attempt to place the pardoning power in hands other than those of the 
Governor of the State. It is merely a modification of penalties pre- 
scribed for certain offenses, and is not in conflict with the Constitu- 
tion. Ex parte Scott, 19 Ohio St., 581. 

1 Debates, 300, 306, 307, 324; 2 Debates, 288, 293, 808, 835, 859, 870. 

Sec. 12. There shall be a seal of the state, which shall be 
kept by the governor, and used by him officially ; and shall 
be called “ The Great Seal of the State of Ohio.” {See Const. 
1802, Art. II, § 14.) 

1 Debates, 300, 307; 2 Debates, 808, 835, 859, 870. 


75 


Command- 
er-in-chief 
of militia. 


May grant 
reprieves, 
commuta- 
tions and 
pardons. 


Seal of state, 
and by 
whom kept. 


76 


CONSTITUTION OF OHIO, 1851. 


How grants 
and commis- 
sions issued. 


Who ineligi- 
ble for gov- 
ernor. 


Who shall 
fill his place 
when vacan- 
cy occurs. 


Lieutenant 

governor. 


If vacancy 
shall occur 
while exe- 
cuting the 
office of gov- 
ernor who 
shall act. 


What vacan- 
cies gover- 
nor to fill. 


Compensa- 

tion. 


Sec. 13. All grants and commissions shall be issued in 
the name, and by the authority, of the state of Ohio ; sealed 
with the great seal ; signed by the governor, and counter- 
signed bv the secretary of state. (See Const. 1802, Art. II, 
§ 15 .) 

1 Debates, 300, 307 ; 2 Debates, 808, 835, 859, 870. 

Sec. 14. No member of congress, or other person holding 
office under the authority of this state, or of the United 
States, shall execute the office of governor, except as herein 
provided. (See Const. 1802, Art. II, § 13.) 

1 Debates, 300, 307; 2 Debates, 288, 808, 835, 859, 870. _ 

Sec. 15. In case of the death, impeachment, resignation, 
removal, or other disability of the governor, the powers and 
duties of the office, for the residue of the term, or until he 
shall be acquitted, or the disability removed, shall devolve 
upon the lieutenant governor. (See Const. 1802, Art. II, 
§12.) 

1 Debates, 300, 307; 2 Debates, 331-333, 808, 835, 859, 870. 

Sec. 16. The lieutenant governor shall be president of 
the senate, but shall vote only when the senate is equally 
divided; and in case of his absence, or impeachment, or 
when he shall exercise the office of governor, the senate 
shall choose a president pro tempore. 

1 Debates, 300; 2 Debates, 293, 808, 835, 859,. 870. 

Sec. 17. If the lieutenant governor, while executing the 
office of governor, shall be impeached, displaced, resign or 
die, or otherwise become incapable of performing the duties 
of the office, the president of the senate shall act as governor, 
until the vacancy is filled, or the disability removed ; and if 
the president of the senate, for any of the above causes, 
shall be rendered incapable of performing the duties per- 
taining to the office of governor, the same shall devolve upon 
the speaker of the house of representatives. (See Const. 1802, 
Art. II, § 12.) 

1 Debates, 300; 2 Debates, 293, 331-333, 808, 809, 835, 859, 
870. 

Sec. 18. Should the office of auditor, treasurer, secretary 
or attorney general, become vacant, for any of the causes 
specified in the fifteenth section of this article, the governor 
shall fill the vacancy until the disability is removed, or a 
successor elected and qualified. Every such vacancy shall 
be filled by election, at the first general election that occurs 
more than thirty days after it shall have happened; and 
the person chosen shall hold the office for the full term fixed 
in the second section of this article. 

1 Debates, 300, 323-336; 2 Debates, 289, 290, 349, 809, 835, 
859, 870. 

Sec. 19. The officers mentioned in this article shall, at 
stated times, receive for their services, a compensation to be 
established by law, which shall neither be increased nor 
diminished during the period for which they shall have 
been elected. (See Const. 1802, Art. 1, § 19.) 

1 Debates, 300, 313-324; 2 Debates, 288, 289, 291, 293, 349, 
809, 835, 859, 870. 



' 





CONSTITUTION OF OHIO, 1851. 


Sec. 20. The officers of the executive department, and of Officers to 
the public state institutions shall, at least five days preced- re P° rt to 
ing each regular session of the general assembly, severally f^when 
report to the governor, who shall transmit such reports, with 
his message, to the general assembly. 

2 Debates, 293, 809, 835, 859, 870. 

ARTICLE IV. 

JUDICIAL. 

Sec. 1. The judicial power (1) of the state shall be vested 
in a supreme court, (2) in district courts, courts of common 
pleas, courts of probate, justices of the peace, and such other 
courts, inferior to the supreme court, in one or more counties, 
as the general assembly may, from time to time, establish. (3) 

(See Const. 1802, Art. Ill , § 1.) 

(1) It is the right and duty of the judicial tribunals to determine 
whether a legislative act drawn in question in a suit pending before 
them, is opposed to the Constitution of the United States, or of this 
state, and if so found, to treat it as a nullity. C. W. & Z. R. R. Co. v. 

Com. of Clinton Co., 1 Ohio St, 77. 

In such case the presumption is always in favor of the validity of the 
law ; and it' is only when manifest assumption of authority and a clear 
incompatibility between the Constitution and the law appear, that the 
judicial power will refuse to execute it. Ib . ; State v. Dudley, lb., 437 ; 

Cass v. Dillon, 2 Ohio St., 608; Hill v. Higdon, 5 Ohio St., 243; Goshorn 
v. Purcell, 11 Ohio St., 641 ; Armstrong v. Treas. of Athens Co., 10 Ohio, 235. 

While we should be careful not to extend the powers of government, 
by far-fetched implication, we should be equally careful not to defeat 
the purpose of the Constitution, by a narrow" and unreasonable con- 
struction. Cass v. Dillon, 2 Ohio St., 608. 

Courts cannot nullify an act of legislation on the vague ground that 
they think it opposed to a general latent spirit, supposed to pervade 
or underlie the Constitution, but which neither its terms nor its impli- 
cations clearly disclose. Walker v. Cincinnati, 21 Ohio St., 14. 

“ The general and abstract question, whether an act of the Legislature 
be unconstitutional, cannot with propriety be presented to a court ; the 
question must be, whether the act furnishes the rule to govern the par- 
ticular case.” j Foster v. Com. of Wood Co., 9 Ohio St., 540-543 — Ghol- 
son, J. 

As a general rule, one part of an act will not be held unconstitutional, 
and another part constitutional, unless the respective parts are indepen- 
dent of each other. They must stand or fall together. State v. Com. of 
Perry Co., 5 Ohio St., 497. 

But parts of an enactment, when capable of separation, may be valid 
and effectual, when other parts may be void, by reason of repugnancy 
to a constitutional provision. Stevens v. State, 3 Ohio St., 453. 


In whom ju- 
dicial power 
vested. 


78 


CONSTITUTION OF OHIO, 1851. 


The supreme 
court. 


The rejection of some of the provisions of a statute, for unconstitu- 
tionality, will not vary the sense or meaning of its remaining provi- 
sions, which are to be construed as well in the light of those rejected as 
of those which remain. State v. Dombaugh, 20 Ohio St., 167. 

(2) The Supreme Court of the United States has appellate jurisdic- 
tion, in certain cases, over the courts of last resort in the several states. 
Piqua Bank v. Knoup, 6 Ohio St , 342 ; Shelly v. Jefferson Bank, 9 Ohio 
St., 606. 

(3) See Art. IV., § 15, Note 1. 

1 Debates, 430, 551, 584, 585, 606; 2 Debates, 369-371, 384, 385, 389, 
391, 392, 396, 401, 402, 483, 484, 668-674, 678-681, 685, 686, 687, 695-698, 
809, 835, 859, 870. 

Sec. 2. The supreme court shall consist of five judges, a 
majority of whom shall be necessary to form a quorum, or 
to pronounce a decision. It shall have original jurisdiction 
in quo warranto, mandamus, habeas corpus, and proce- 
dendo, (1) and such appellate jurisdiction as may be pro- 
vided by law. (2) It shall hold at least one term in each 
year, at the seat of government, and such other terms, at 
the seat of government, or elsewhere, as may be provided by 
law. The judges of the supreme court shall be elected by 
the electors of the state at large. ( See Const. 1802, Art. Ill , 
§ 2 .) 

(1) The original jurisdiction of the Supreme Court is limited by the 
Constitution to quo warranto, mandamus, habeas corpus, and proce- 
dendo. Logan Branch Bank, ex parte, 1 Ohio St., 432 ; Kent v. Mahaffy, 
2 Ohio St., 498. 

“ This is the only original jurisdiction granted by this instrument, and 
it would be "wholly inconsistent with, and in a great measure destruct- 
ive of, the judicia 1 system it ordains, to suppose that this original juris- 
diction can be enlarged by law. It is true there is no express prohibi- 
tion against it, but none was necessary. The court can exercise only 
such powers as the Constitution itself confers, or authorizes the Legis- 
lature to grant. It can derive no power elsewhere. The only jurisdic- 
tion that the Legislature is authorized to confer upon the Supreme 
Court, is apellate jurisdiction. For it cannot be supposed that, by 
the general grant of legislative power, in the second article of the Con- 
stitution, the legislative authority to confer powders upon courts is ex- 
tended beyond the authority vested in the Assembly by the fourth, or 
judicial, article.” Kent v. Mahaffy, 2 Ohio St., 498-499— Thurman, J. 

The power to grant an injunction in a case pending in the Court of 
Common Pleas cannot constitutionally be conferred on the Supreme 
Court. Ib., 498. And see Griffith v. Com. of Crawford Co., 20 Ohio, 609. 

Nor can such power be conferred on a single judge of that court, sit- 
ting at chambers. P. Ft. IF. & C. It. R. Co. v. Ilurd, 17 Ohio St., 144. 

Nor has that court .original jurisdiction, under the Constitution, to 
hear and determine an action purporting to be brought therein to 
enjoin illegal taxes. Wheeler v. Lynn , 8 Ohio St., 393. 

(2) The appellate jurisdiction of the Supreme Court extends only 
to the judgments and decrees of courts created and organized in pur- 








CONSTITUTION OF OHIO, 1851. 


79 


suance of the provisions of the Constitution. Therefore the appeal 
from the decision of the Auditor of State, provided in the seventy- 
fourth section of the act of April 13, 1852 (50 0. L., 166), “for the 
assessment and taxation of all property in this state/’ etc., is in conflict 
with the provisions of the Constitution, from which the jurisdiction of 
the court is derived, and hence cannot be had. Logan Branch Bank, ex 
parte, 1 Ohio St., 432. 

The statute authorizing the reservation of a cause by a District Court, 
or the supreme judge sitting therein, for decision by the Supreme 
Court, is constitutional. Chase v. Washburne, 2 Ohio St., 98. 

The District and Supreme Courts are capable of receiving jurisdiction 
to review cases decided by themselves. Longworth v. Sturges, 4 Ohio 
St., 690. 

By the Constitution, and the act of February 19, 1852 (50 0. L., 67), 
for the organization of the courts, ample power was given to the Su- 
preme Court to review a judgment of the late Supreme Court on the 
circuit. Groves v. Stone, 3 Ohio St., 576. 

1 Debates, 430, 431, 551, 585-592, 606-608, 611, 616, 622-624, 627, 628, 
642, 651-655; 2 Debates, 353-357; 364-368, 384-391, 396, 400-402, 483, 484, 
668, 681, 685, 686, 694-698, 809, 835, 859, 860, 870. 

Sec. 3. The state shall be divided into nine common 
pleas districts, of which the county of Hamilton shall con- 
stitute one, of compact territory, and bounded by county 
lines ; (1) and each of said districts, consisting of three or 
more counties, shall be subdivided into three parts, of com- 
pact territory, bounded by county lines, and as nearly equal 
in population as practicable ; in each of which, one judge 
of the court of common pleas for said district, (2) and resid- 
ing therein, shall be elected by the electors of said subdi- 
vision. Courts of common pleas shall be held, by one or 
more of these judges, in every county in the district, as often 
as may be provided by law ; and more than one court, or 
sitting thereof, may be held at the same time in each dis- 
trict. (3) ( See Const. 1802, Art. 7/7, § 3.) 

(1) “To construe properly this provision, reference must be had to 
other parts of the Constitution. It certainly cannot mean that the 
number of the districts shall always continue to be nine, since power 
is given to the General Assembly to increase or diminish them (§ 15). 
It is equally clear that it cannot mean that the county limits shall 
always remain the same, as full power is given to change them and to 
make new counties (Art. II, \ 30). To hold, on the other hand, that 
the limits of the districts must of necessity enlarge or diminish with 
the counties named as embraced in them, would be to say that Hamil- 
ton county, so reduced by division as to contain but twenty thousand 
inhabitants, would still constitute a district and be entitled to elect 
three judges. When taken in connection with the fact that the con- 
vention itself proceeded to make the division referred to in this section 
(see Art. XI, $ 12), it is very clear to us that it must be regarded mainly 
as prescribing a rule for the goverment of their own action ; and when 
they did act in accordance with it, and fixed the districts by definite 


The com- 
mon pleas. 


80 


CONSTITUTION- OF OHIO, 1851. 


Their juris- 
diction. 


District 

courts. 


boundaries, they must so remain, securing to all the citizens included 
within them their right of suffrage in such districts, until changed by 
legislative enactment.” State v. Dudley, 1 Ohio St., 437-449— Kanney, J. 

(2) The judges of the courts of common pleas are judges of their re- 
spective districts, and not of the mere subdivision thereof. The sub- 
division of the districts is for election purposes merely. Harris v. Gest, 
4 Ohio St., 472. 

(3) There is nothing in the Constitution that forbids the holding of 
common pleas courts in different counties of a subdivision at the same 
time. Ib. 

1 Debates, 431, 590-655 ; 2 Debates, 357, 370, 379-381, 384, 387, 389, 
390, 396, 401, 402, 483-485, 681, 686, 695-698, 809, 835, 836, 860, 870. 

Sec. 4. The jurisdiction of the courts of common pleas, 
and of the judges thereof, shall be fixed by law. ( See Const. 
1802, Art. ill , §§ 3, 4, 5, 6.) 

The Constitution confers no jurisdiction whatever upon the court of 
common pleas, in either civil or criminal cases. It is made capable of 
receiving jurisdiction in all such cases, but can exercise none until 
conferred by law. Stevens v. State , 3 Ohio St., 453. 

See Art. II,. § 26, Note 1 ; Art. IV, § 8, Note 3. 

1 Debates, 431, 590 ; 2 Debates, 357, 370, 396, 401, 402, 483, 485, 685, 
686, 695-698, 809, 836, 860, 870. 

Sec. 5. District courts shall be composed of the judges 
of the court of common pleas (1) of the respective districts, 
and one of the judges of the supreme court, (2) any three of 
whom thall be a quorum, and shall' be held in each county 
therein, at least once in each year ; but if it shall be found 
inexpedient to hold such court annually, in each county of 
any district, the general assembly may, for such district, 
provide that said court shall hold at least three annual ses- 
sions therein, in not less than three places : Provided, that 
the general assembly may, by law, authorize the judges of each 
district to fix the times of holding the courts therein. (3) 

(1) The judges of the Court of Common Pleas are, by the Constitution 
and laws of this state, judges of the District Court, and, as such, em- 
powered to exercise its authority. Hollister v. Judges, 8 Ohio St., 201. 

' (2) A District Court held by three or more Common Pleas judges, 
without the presence of a judge of the Supreme Court, is a lawful and 
constitutional District Court. King v. Safford, 19 Ohio St., 587. 

(3) Section seven of the act of March 29, 1856 (53 O. L., 44), in rela- 
tion to the time of holding courts, authorizing the judges of a district 
to appoint special terms for good cause, is authorized by this section. 
Merchant v. North , 10 Ohio St., 251. 

1 Debates, 431, 590-626, 630, 645, 647-651, 655-669; 2 Debates, 357, 
368-391, 396, 402, 483-485, 668, 669, 685, 686, 695-698, 809, 836, 860, 870. 



















CONSTITUTION OF OHIO, 1851. 


Sec. 0. The district court shall have like original juris- 
diction with the supreme court, and such appellate jurisdic- 
tion as may be provided by law. 

Under the new judicial system established by this Constitution and 
the enactments under it, the District Court has no jurisdiction, on the 
election of the defendant or otherwise, to try cases of murder, unless 
they were pending in the old Supreme Court, and went to the District 
Court by the transfer provided in the Constitution, as pending business. 
(Schedule, \ 12.) Parks v. State, 3 Ohio St., 101; Cass v. Dillon , 2 Ohio 
St., 607-640; Robbins v. State, 8 Ohio St., 131-161. 

“This unfortunate operation of the present Constitution, doubtless 
the result of oversight, is much to be regretted. While the new Con* 
stitution enlarged the means of obtaining justice in civil cases — provid- 
ing two courts, and allowing a trial in each, as a matter of right, in con- 
tests for property it narrowed the chance for impartial justice, in causes 
in which life is at stake, by allowing a trial in such cases only in the 
Common Pleas, and taking away the right of the accused, which had 
existed, to elect to be tried in the higher tribunal, held by several 
judges removed from the local excitement and prejudice which too 
often surround the single judge in the trial of capital cases, in the Com- 
mon Pleas.” Robbins v. State, 8 Ohio St., 131-161 — Bartley, C. J. 

A statute authorizing the reservation of a cause by a District Court, 
or the Supreme Judge sitting therein, for decision by the Supreme Court, 
is constitutional. Chase v. Washbume, 2 Ohio St., 98. 

1 Debates, 431, 590, 594, 595, 618, 619 ; 2 Debates, 396, 402, 483-485, 
668, 685, 686, 695-698, 809, 836, 860, 870. 

Sec. 7. There shall be established ill each county, a pro- 
bate court, which shall be a court of record, (1) open at all 
times, and holden by one judge, elected by the voters of the 
county, who shall hold his office for the term of three years, 
(2) and shall receive such compensation, payable out of the 
county treasury, or by fees, or both, as shall be provided by 
law. 

(1) The Probate Courts of this state are, in the fullest sense, courts 
of record; they belong to the class whose records import absolute 
verity, that are competent to decide on their own jurisdiction, and to 
exercise it to final judgment, without setting forth the facts and evi- 
dence on which it is rendered. Sliroyer v. Richmond, 16 Ohio St., 455. 

(2) The county of Wyandot, on account of a tie vote, failed to elect 
a probate judge on the second Tuesday of October, 1851, as prescribed 
by the fourth section of the schedule to this Constitution. At the fall 
election of 1852, K. was elected to that office, and was commissioned 
for the term of three years. At the fall election of 1855, he was re- 
elected and commissioned for a like term. On the second Tuesday of 
October, 1857, and while K. still remained judge de facto, another elec- 
tion was held for the office, and M. received the highest number of 
votes. Held — That K. was, on each of his said elections, legally com- 
missioned for the term of three years, and that M. was not therefore 
entitled to a commission to take effect from the 9tli day of February, 

6 


Their jur 
diction. 


Probate 

courts. 


82 


CONSTITUTION OF OHIO, 1851. 


Their juris- 
diction. 


Justices of 
the peace. 


1858. ( Schedule , § 4.) State v. Chase, 7 Ohio St., 372. (See Art. IV, 
^ 13, note.) 

1 Debates, 431, 551, 591, 593, 602, 623, 669, 673, 675, 676 ; 2 Debates, 
379, 390, 396-402, 483-485, 681, 682, 685, 686, 695-698, 809, 836, 860, 870. 

Sec. 8. The probate court shall have jurisdiction in pro- 
bate and testamentary matters, the appointment of admin- 
istrators and guardians, the settlement of the accounts of 
executors, administrators (1) and guardians, and such juris- 
diction in habeas corpus, the issuing of marriage licenses, 
and for the sale of land by executors, administrators and 
guardians, and such other jurisdiction, in any county or 
counties, (2) as may be provided by law. 

(1) There exists no constitutional impediment to investing the Pro- 
bate Court with power, upon final settlement with the administrator of 
an intestate estate, to order distribution of the money remaining in his 
hands to the persons entitled thereto. McLaughlin v. McLaughlin , 4 
Ohio St., 508. 

$2) This jurisdiction may be extended to all the counties in the 
state by a general enactment. “ The words, ‘ in any county or coun- 
ties,’ were probably used rather as enabling than restrictive language, 
and were designed to permit the General Assembly — notwithstanding 
the provisions of the twenty-sixth section of the second article, requir- 
ing all laws of a general nature to have a uniform operation throughout 
the state — in its discretion, to confer upon the Probate Court more ex- 
tended powers in some counties than in others. Upon the opposite 
construction, a power to confer the jurisdiction in one county by a local 
enactment, is a power" to confer it in all the counties in the same man- 
ner ; w r hich brings us to the absurd conclusion that the Legislature is 
competent to do by ninety laws what it is incompetent to do by one.” 
Giesy v. G W. & Z. R. R. Co., 4 Ohio St., 308-320— Ranney, J. 

“A jurisdiction may be given to the Probate Court in one county 
which is not conferred in another ; but this express exception relates 
only to the extent of the jurisdiction of the Probate Court. The whole 
object of the section is to define the limits of its jurisdiction ; it treats 
of nothing else, and does not once name the Courts of Common Pleas. 
Nor does it follow as a necessary conclusion that because the jurisdic- 
tion of the Probate Court may be more extensive in one county than in 
another, the jurisdiction of the Courts of Common Pleas must also differ 
in extent. The latter may be uniform and the former not. The Pro- 
bate Court may, in some counties, possess a jurisdiction concurrent 
with the Common Pleas, which is denied to it in others.” Kelley v. 
State, 6 Ohio St., 269-273 — Scott, J. ; and see Art. II, § 26. note 1. 

1 Debates, 431, 551, 591, 593, 602, 609-612, 616, 622, 623, 625, 654, 669- 
695 ; 2 Debates, 357-371, 379, 384, 390, 396, 398-402, 483-485, 681-686, 695- 
698, 809, 836, 860, 870. 

Sec. 9. A competent number of justices of the peace 
shall be elected, by the electors, in each township of the 
several counties. Their term of office shall be three years, 
and their powers and duties shall be regulated by law. 
(See Const. 1802, Art. Ill , § 11.) 

1 Debates, 431, 551, 593, 654 ; 2 Debates, 370, 384, 396, 401, 
402, 483-485, 685, 686, 695-698, 809, 836, 860, 870. 





CONSTITUTION OF OHIO, 1851. 


83 


Sec. 10. All judges, other than those provided for in this 
constitution, shall be elected by the electors of the judicial 
district for which they may he created, but not for a longer 
term of office than five years. 

1 Debates. 431, 551, 670-707, 710-719; ‘2 Debates, 359, 360, 
396, 402, 484, 685 ? 686, 695-698, 809, 836, 860, 870. 

Sec. 11. The judges of the supreme court shall, immedi- 
ately after the first election under this constitution, be 
classified by lot, so that one shall hold for the term of one 
year, one for two years, one for three years, one for four 
years, and one for five years ; and, at all subsequent elec- 
tions, the term of each of said judges shall be for five years. 

1 Debates, 431, 551, 719, 720 ; 2 Debates, 131-133, 360, 396, 
400, 402, 483-485, 684-686, 695-698, 809, 836, 860, 870. 

Sec. 12. The judges of the courts of common pleas shall, 
while in office, reside in the district for which they are 
elected, and their term of office shall be for five years. (See 
Const. 1802, Art. Ill , §§ 3, 8.) 

1 Debates, 431 ; 2 Debates, 133, 360, 396, 402, 483-485, 685, 
686, 695-698, 809, 836, 860, 870. 

Sec. 13. In case the office of any judge shall become 
vacant, before the expiration of the regular term for which 
he was elected, the vacancy shall be filled by appointment 
by the governor, until a successor is elected and qualified ; 
and such successor shall be elected for the unexpired term, 
at the first annual election that occurs more than thirty 
days after the vacancy shall have happened. 

Where a vacancy occurred in the office of Probate Judge of Picka- 
way county more than thirty days before the next annual election, at 
which a probate judge for the constitutional term was also to be chosen, 
and the sheriff, in his proclamation giving notice of said election, failed 
to give notice that a probate judge would be chosen to fill the unex- 
pired term, but merely gave notice that one probate judge for said 
county would be chosen, without more, and the voters cast their bal- 
lots for probate judge without indicating whether for the unexpired 
term or for the constitutional term — held : 1. That under the Consti- 

tution and laws of this state, such election of probate judge was not 
void for uncertainty. 2. That such election did not embrace both the 
offices which should have been voted for at that time. 3. That the 
judge thus elected must, by reasonable intendment, be held to have 
been elected for the full, and not for the unexpired term. State v. Cogs- 
well, 8 Ohio St., 620. 

The term of office of a judge elected to fill a vacancy is limited to 
the unexpired portion of the regular term in which such vacancy 
occurs ; and a commission assuming to confer official authority for a 
longer term is, as to the excess, inoperative. Scarff v. Foster , 15 Ohio 
St., 137. 

Where a vacancy is about to occur in the office of probate judge, by 
reason of the expiration of the term of an incumbent of that office, 
and the sheriff, in pursuance of the statute, in due time prior to the 
day for the regular election, publishes his proclamation, giving notice 
of such election, and enumerating therein all the state and county 


Other 

judges. 


Classifica- 
tion of 
supreme 
judges. 


Common 
pleas judges, 
their term of 
office and 
residence. 


Vacancies, 
how filled. 


84 


CONSTITUTION OF OHIO, 1851. 


offices to be filled at such election, except the office of probate judge, 
in respect to which the proclamation is silent ; and, by reason of such 
misfeasance of the sheriff, the great body of the electors of such county 
are misled, and have no notice, either official or in fact, of an election 
to fill the office of probate judge; but, nevertheless, a small number 
of the electors of the county, less than one-fourth of the whole num- 
ber of voters at that election, cast their votes for a single candidate, 
and no votes are cast for any other, such attempted election is irregu- 
lar and invalid. Foster v. Scarff, 15 Ohio St., 532. 

“ From this section the implication is manifest, that the Constitution 
intends that in respect to elections to fill vacancies in the office of 
judge, at least thirty days’ time for notice of the election shall be 

afforded We do not intend to hold, nor are we of opinion, 

that the notice by proclamation, as prescribed by law, is per se, and in 
all supposable cases, necessary to the validity of an election. If such 
were the law, it tvnuld be in the power of a ministerial officer, by his 
misfeasance, always to prevent a legal election. We have no doubt 
that where an election is held in other respects as prescribed by law, 
and notice in fact of the election is brought home to the great body of 
the electors, though derived through means other than the proclama- 
tion which the law prescribes, such election would be valid. But 
where, as in this case, there was no notice, either by official proclama- 
tion or in fact, and it is obvious that the great body of the electors were 
misled, for want of the official proclamation, its absence becomes such 
an irregularity as to prevent an actual choice by the electors, prevents 
an actual election, in- the primary sense of that word, and renders in- 
valid any semblance of an election, which may have been attempted 
by a few, and which must operate, if it be allowed to operate at all, as 
a surprise and fraud upon the rights of the many.” lb., 535, 537 — 
Brinkerhoff, C. J. 

1 Debates, 431, 551 ; 2 Debates, 333, 360, 396, 400, 402, 483-485, 685, 
686, 695-698, 809, 836, 860, 870. 

Compensa- Sec. 14. The judges of the supreme court, and of the 
tionof court of common pleas, shall, at stated times, receive, for 

judges. their services, such compensation as may be provided by 

law, which shall not be diminished, or increased during 
their term of office ; but they shall receive no fees or per- 
quisites, nor hold any other office of profit or trust, under 
Ineligible to the authority of this state, or the United States. (1) All 
other offices, votes for either of them, for any elective office, except a ju- 
dicial office, under the authority of this state, given by the 
general assembly, or the people, shall be void. (See Const. 
1802, Art. Ill , § 8.) 

(1) The act of May 4, 1869 (66 O. L., 80), “relating to cities of the 
first class having a population exceeding one hundred and fifty thou- 
sand inhabitants,” is not opposed to this section. The duty it imposes 
upon the court — the appointment of trustees of a railroad to be con- 
structed by a municipal corporation — is of a j udicial character. Neither 
does it create a new office, in imposing this duty on the judges of the 










































































CONSTITUTION OF OHIO, 1851. 


85 


court, but simply annexes a new duty to an existing office. Walker v. 
Cincinnati , 21 Ohio St., 14. 

So also the authority of determining the number and compensation 
of assistants to various county officers, conferred by the act of April 6, 
1870 (67 O. L., 36), and the supplemental act of April 12, 1871 (68 
O. L., 58), on the judges of the Court of Common Pleas, does not in- 
vest them with a new office, but merely authorizes them to perform 
additional duties as judges. State v. Judges , lb. 1. 

1 Debates, 431, 551 ; 2 Debates, 133, 134, 360-364, 396, 397, 400, 402, 
4S3-485, 685, 686, 695-698, 809, 836, S37, 860, 870. 

Sec. 15. The general assembly may increase, or diminish, 
the number of the judges of the supreme court, the number 
of the districts of the court of common pleas, the number of 
judges in any district, change the districts, or the subdi- 
visions thereof, or establish other courts, (1) whenever two- 
thirds of the members elected to each house shall concur 
therein : but no such change, addition, or diminution, shall 
vacate the office of any judge. (2.) 

(1) “It is perfectly clear that, upon the creation of any additional 
court by the Legislature, the judicial officer must be elected, as such, 
by the electors of the district for which such court is created (Art. IV, 
\ 10) ; and it is not within the competency of the Legislature to clothe 
with judicial power any officer or person not elected as a judge.” Logan 
Branch Bank, ex parte , 1 Ohio St., 432-434 — Corwin, J. 

The act of May 3, 1852, “ to provide for the organization of cities and 
incorporated villages” (S. & C., 1493), conferring on mayors of cities of 
the second class “all the jurisdiction and powers of a justice of the 
peace in all matters civil or criminal,” provided the same was passed 
by a vote of two-thirds of all the members elected to each House of the 
General Assembly, is not in contravention of this Constitution. Steam- 
boat Northern Indiana v. MiUiken, 7 Ohio St., 383. 

Such concurrence will, in absence of all showing to the contrary, be 
presumed. Ib. ; Miller v. State, 3 Ohio St., 475. 

(2) That is, the offiee of any judge of a court established by this 
Constitution. But the Constitution has not limited the power of the 
General Assembly to abolish courts created by the Legislature, nor its 
power to vacate the offiee of judges of such courts. State v. Wright, 
7 Ohio State, 333. 

1 Debates, 431 ; 2 Debates, 396, 400, 402, 4S4, 485, 6S4-6S6, 695 698. 
809, 837, S60, 870. 

Sec. 16. There shall be elected in each county, by the 
electors thereof, one clerk of the court of common pleas, who 
shall hold his office for the term of three years, and until 
his successor shall be elected and qualified. He shall, by 
virtue of his office, be clerk of all other courts of record 
held therein; but, the general assembly may provide, by 
law, for the election of a clerk, with a like term of office, 
for each or any other of the courts of record, and may au- 
thorize the judge of the probate court to perform the duties 


N umber of 
judges may 
be increased 
or diminish- 
ed, districts 
altered, and 
other courts 
established. 


Clerks of 
courts. 


CONSTITUTION OF OHIO, 1851. 

of clerk for his court, under such regulations as may be 
directed by law. Clerks of courts shall be removable for 
such cause and in such manner as shall be prescribed by 
law. (Sec. Const. 1802, Art. Ill, § 9.) 

The period for the termination of the office of Clerk of the Court of 
Common Pleas, held by simple appointment to fill a vacancy, is not 
fixed by the Constitution, but subject to legislative enactment. (Art. II, 
2 20.) State v. Neibling, 6 Ohio St., 40. 

In case of a vacancy in the office of Clerk of the Court of Common 
Pleas, the successor, elected by the electors of the county, is elected 
for the full term of three years, which will commence from and after 
the day of his election. Ib. 

1 Debates, 431, 551 ; 2 Debates, 134-139, 364, 396, 397, 400, 402, 483- 
485, 685, 686, 695-698, 809, 810, 837, 860, 870. 

Sec. 17. Judges may be removed from office, by concur- 
rent resolution of both houses of the general assembly, if two- 
thirds of the members, elected to each house, concur therein ; 
but, no such removal shall be made, except upon complaint, 
the substance of which shall be entered on the journal, nor, 
until the party charged shall have had notice thereof, and 
an opportunity to be heard. 

1 Debates, 431 ; 2 Debates, 397, 398, 400, 402, 483-485, 685, 
686, 695-698, 810, 837, 860, 870. 

Powers and Sec. 18. The several judges of the supreme court, of the 
jurisdiction, common pleas, -and of such other courts as may be created, 
shall, respectively, have and exercise such power and juris- 
diction, at chambers, or otherwise, as may be directed by 
law. 

“Jurisdiction at chambers is incidental to, and grows out of, the 
jurisdiction of the court itself. It is the power to hear and determine, 
out of court, such questions arising between the parties to a contro- 
versy, as might well be determined by the court itself, but which the 
Legislature has seen fit to intrust to the judgment of a single judge, 
out of court, without requiring them to be brought before the court in 
actual session. It follows, that the jurisdiction of a judge at chambers 
cannot go beyond the jurisdiction of the court to which he belongs, or 
extend to matters with which his court has nothing to do ; and the Con- 
stitution, in granting such jurisdiction at chambers to the judges of the 
several courts of the state, as may be directed by law, is to be under- 
stood as limiting the jurisdiction of each to such subject matters as are 
within the jurisdiction of his proper court, and to which it is, ex vi Ur- 
mini, limited.” P. Ft. W. & C. Ry. Co. v. Hurd, 17 Ohio St., 144-146, 
147 — Scott, J. 

1 Debates, 431 ; 2 Debates, 402. 484, 685, 686, 695-698, 810, 837, 860, 
870. 

Courts of Sec. 19. The general assembly may establish courts of 

conciliation, conciliation, and prescribe their powers and duties ; but 
such courts shall not render final judgment in any case, ex- 


86 




Judges 

removable. 


I 



. 


' 








CONSTITUTION OF OHIO, 1S51. 


87 


cept upon submission, by the parties, of the matter in dis- 
pute, and their agreement to abide such judgment. 

2 Debates, 390, 391, 402, 4S3-485,' 685, 686, 695-698, 794, 
805, S33, S37, S60, 870. 

Sec. 20. The style of all process shall be, “ The State of 
Ohio all prosecutions shall be carried on in the name, 
and by the authority, of the state of Ohio ; and all indict- 
ments shall conclude, “against the peace and dignity of the 
state of Ohio.” {See Const. 1802, Art. Ill , § 12. 

Where it appears from the caption of an indictment that the prose- 
cution is carried on “ in the name and by the authority of the state of 
Ohio, it need not be again averred in the successive counts of the in- 
dictment : and if the indictment contains more than one count, and a 
nofle prosequi is entered as to the first, the remaining counts of the in- 
dictment will not thereby be rendered defective for want of that aver- 
ment. where it is contained in the caption. Dans v. State, 19 Ohio St., 
270. 

2 Debates, 398, 402, 484, 4S5, 685, 6S6, 695-698, 810, 837, S60, 870. 


ARTICLE V. 

ELECTIVE FRANCHISE. 

Section 1. Every white(l) male citizen of the United 
States, of the age of twenty-one years, who shall have been 
a resident of the state one year next preceding the election, 
and of the county, township, or ward, in which he resides, 
such time as may be provided by law. shall have the quali- 
fications of an elector,(2) and be entitled to vote at all elec- 
tions.^) {Sec Const. 1802, Art. IV , §§ 1, 5.) 

(1 For a discussion and definition of the word “ white,” as here 
used, see Anderson v. Millikin , 9 Ohio St, 56S ; A Conroe v. Collins. 17 Ohio 
St., 665; Jejfries v. An&my, 11 Ohio, 372; Thacker v. Hatrk, lb., 376 ; 
Gray v. State. 4 Ohio, 353 ; Lane v. Baker , 12 Ohio, 237 ; IVUliams v. School 
Directors, Wright's Rep., 178. 

This restriction on the elective franchise is now abrogated by the 
fourteenth and fifteenth articles of amendments to the Federal Consti- 
tution. Article XIV, so far is it relates to this subject, is as follows : 
“ All persons born or naturalized in the United States, and subject to 
the jurisdiction thereof, are citizens of the United States and of the 
state wherein they reside.” The fifteenth article provides that, 
1. ** The right of the citizens of the United States to vote shall not be 
denied or abridged by the United States or by any state, on account of 
race, color, or previous condition of servitude. 2. The Congress shall 
have power to enforce this article by appropriate legislation.” Such 
legislation has been enacted by Congress. 

(2) The Legislature has no right, directly or indirectly, to deny or 
abridge the constitutional right of citizens to vote, or unnecessarily to 
impede its exercise ; and laws passed professedly to regulate its exercise 
or prevent its abuse, must be reasonable, uniform and impartial. Mon- 
roe v. Collins, 17 Ohio St., 665. 


Style of pro- 
cess, prose- 
cution and 
indictment. 


Who may 
vote. 


88 


CONSTITUTION OF OHIO, 1851. 


(3) The act of April 13, 1863 (60 0. L., 80), “to -enable qualified 
voters of this state, in the military service of this .state or of the Uni- 
ted States, to exercise the right of suffrage,” was intended to enable 
qualified voters of the state, in the military service, to vote, in accord- 
ance with its provisions, as well without as within the territorial limits 
of this state. The act is not clearly in conflict -with any constitutional 
provision, and is, therefore, to be regarded as a constitutional and valid 
enactment. It does not purport to have such extra territorial operation 
and effect as would place its enactments beyond the legitimate sphere 
of the legislative power of the state, and so render them invalid. Leh- 
man v. McBride, 15 Ohio St., 573. 

“The general principle which pervades the Constitution on the sub- 
ject of elections, is that no one shall be allowed to participate in the 
election of officers whose jurisdiction will not extend over him, or terri- 
torially include the place of his residence ; but that the electors of 
each district or civil subdivision of the state shall have the right to 
select their own official representatives or public functionaries. Under 
a proper construction of the Constitution, persons having the qualifica- 
tions of electors may justly claim ‘a right to vote at all elections’ of 
officers of the state, and of such other civil officers as, bj^the provisions 
of the Constitution and laws, are to be chosen by the electors of the 
county, township, ward or district in which such persons respectively 
reside. The place of holding an election is not the criterion, and 
furnishes no essential part Of the test, which limits the elector’s right 
to vote ‘ at all elections.’ But a right to vote at all elections does not 
import a right to vote at more than one of the places prescribed by law 
for holding an election, any more than it imports a right to vote more 
than once at the same place.” Ib., 598— Scott, J. 

“We find nothing in this section wdiich refers, in the slightest de- 
gree, even by implication, to the place of holding elections. Had it 
been the intention of the framers of our present Constitution to fix or 
limit, by this section, the place at which the elective franchise should 
be exercised by the voters respectively, it is quite remarkable that no 
attempt should have been made to do so, in express terms ; that such 
an important limitation of legislative power should have been left to 
be gathered from what is not said, or to be inferred from a declaration 
of the elector’s ‘right to vote at all elections.’ And it is the more re- 
markable because, in the corresponding section of the Constitution of 
1802 (Art. IV, $ 1), which defines the qualifications of electors, there 
was a clause of express limitation, in the following terms : ‘No per- 
son shall be entitled to vote except in the county or district in which 
he shall actually reside at the time of the election.’ Now, the fact 
that this clause was wholly excluded from the present Constitution, and 
no express limitation as to the place of voting was inserted in its stead, 
would seem to be quite significant. It is in this part of the Constitution, 
which treats solely of the elective franchise, that we would naturally ex- 
pect to find, if anywhere, a restriction limiting the place of its exercise. 
Here such restriction was placed, in express terms, by the Constitution of 
1802, and from this, its appropriate place, it was stricken out in the 
Constitution of 1851, and inserted in no other place. We think it may 
be very fairly inferred, that whilst the Constitution defines the qualifi- 












CONSTITUTION OF OHIO, 1851. 


89 


cations of electors, and prescribes by what portion of them all officers 
shall be chosen, it was intended to leave all further details, whether as 
to the place of holding elections, or the mode in which they should be 
conducted, to the wisdom of the Legislature, to be provided for, and 
modified, from time to time, as the ever-varying circumstances of the 
unknown future might seem to requre.” Ib. 

1 Debates, 693; 2 Debates, 8-10, 352, 550-555, 635-640, 811, 838, 860, 
870. 

Sec. 2. All elections shall be by ballot. (See Const. 1802, 
Art. IV , § 2.) 

1 Debates, 698 ; 2 Debates, 10, 811, 888, 860, 870. 

Sec. 3. Electors, during their attendance at elections, and 
in going to, and returning therefrom, shall be privileged 
from arrest, in all cases, except treason, felony, and breach 
of the peace. ( See Const. 1802, Art. IF, § 3.) 

1 Debates, 693; 2 Debates, 10, 811, 838, 860, 870. 

Sec. 4. The general assembly shall have power to ex- 
clude from the privilege of voting, or of being eligible to 
office, any person convicted of bribery, perjury, or other in- 
famous crime. ( See Const. 1802, Art. IV, § 4.) 

1. Debates, 693; 2 Debates, 10, 352, 811, 838, 861, 870. 

Sec. 5. No person in the military, naval, or marine ser- 
vice of the United States, shall, by being stationed in any 
garrison, or military, or naval station, within the state, be 
considered a resident of this state. 

Inmates of an asylum provided by the United States for disabled 
volunteer soldiers, resident within the territory so used, being within 
the exclusive jurisdiction of a government other than that of the state 
within whose boundaries such asylum or territory may be situate, are 
not residents of such state within the meaning of this section of the 
Constitution ; and where the Constitution of such state confers the 
elective franchise upon residents thereof alone, the inmates of such 
asylum, resident within such territory, are not entitled to vote at any 
election held within and under the laws of such state. Sinks v. Reese, 
19 Ohio St., 306. 

But persons residing in said asylum at the time of an election, after 
the jurisdiction thereover had been restored to the state, and for the 
year next preceding the election, are to be regarded as residents of the 
state, and for the entire year, notwithstanding the fact that part of the 
year transpired while the jurisdiction was in the United States. Ren- 
ner v. Bennett , 21 Ohio St., 431. 

1 Debates, 693 ; 2 Debates, 10, 811, 838, 861, 870. 

Sec. 6. No idiot, or insane person, shall be entitled to 
the privilege of an elector. 

The vote of a man otherwise qualified, who is neither a lunatic nor 
an idiot, but whose faculties are simply greatly enfeebled by age, ought 
not to be rejected. Sinks v. Reese, 19 Ohio St., 307. 

1 Debates, 693 ; 2 Debates, 10, 811, 838, 861, 870. 


By ballot. 


Voters, when 
privileged 
from arrest. 


Forfeiture of 

elective 

franchise. 


Persons not 
considered 
residents of 
the state. 


Idiots or 
insane per- 
sons. 


00 


CONSTITUTION OF OHIO, 1861. 


F imds for 
educational 
and religious 
purposes. 


School 

funds. 


Insane, 
blind, and 
deaf and 
dumb. 


Directors 
of peniten- 
tiary, trus- 
tees of be- 
nevolent 
and other 
state institu- 
tions, how 
appointed. 


. ARTICLE VI. 

EDUCATION. 

Sec. 1. The principal of all funds, arising from the sale, 
or other disposition of lands, or other property, granted or 
entrusted to this state for educational and religious purposes, 
shall forever be preserved inviolate, and undiminished ; and, 
the income arising therefrom, shall be faithfully applied to 
the specific objects of the original grants, or appropriations. 

1 Debates, 693, 694; 2 Debates, 10, 11, 18, 698, 711, 821, 
843, 861, 870. 

Sec. 2. The general assembly shall make such provi- 
sions, by taxation, or otherwise, as, with the income arising 
from the school trust fund, will secure a thorough and effi- 
cient system of common schools throughout the state ; (1) 
but, no religious or other sect, or sects, shall ever have any 
exclusive right to, or control of, any part of the school funds 
of this state. 

1 Debates, 693, 694; 2 Debates, 11-20, 698-700, 711, 821, 
843, 861, 870. 

(1) The statute of March 14, 1853, “ to provide for the reorganization, 
supervision and maintenance of common schools,” is a law of classifi- 
cation, and not of exclusion, providing for the education of all youths 
within the prescribed ages ; and the words “white” and “colored,” as 
used in said act, are used in their popular and ordinary signification. 
Children of three--eighths African blood, generally treated and regarded 
as colored children by the community where they reside, are not, as of 
right, entitled to admission into the common schools set apart, under 
said act, for the instruction of white youths. Van Camp v. Board of Ed- 
ucation of Logan, 9 Ohio St., 406; State v. McCann , 21 Ohio St., 198. 

See Art. I, \ 7, note 2 ; Const. 1802, Art. VIII, § 25, note. 

ARTICLE VII. 

PUBLIC INSTITUTIONS. 

Sec. 1. Institutions for the benefit of the insane, blind, 
and deaf and dumb,' shall always be fostered and supported 
by the state ; and be subject to such regulations as may be 
prescribed by the general assembly. 

1 Debates, 365, 539, 542, 543 ; 2 Debates, 340, 349, 700, 821, 
843, 861, 870. ’ ’ 

Sec. 2. The directors of the penitentiary shall be ap- 
pointed or elected in such manner as the general assembly 
may direct ; and the trustees of the benevolent, and other 
state institutions, now elected by the general assembly, and 
of such other state institutions as may be hereafter created, 
shall be appointed by the governor, by and with the advice 
and consent of the senate ; and upon all nominations made 
by the governor, the question shall be taken by yeas and 
nays, and entered upon the journals of the senate. 

































CONSTITUTION OF OHIO, 1851. 


91 


“The first clause of this section is in no way inconsistent, or in con- 
flict, with the provisions of the twenty-seventh section ^of the second 
article, but is in entire harmony with it. It in no way qualifies or 
enlarges the exceptions to the general prohibition of any appointing 
power by the General Assembly therein contained, but leaves that 
prohibition to operate, with full force and effect. . . . The clause 
of Art. VII, % 2, that ‘the directors of the penitentiary shall be ap- 
pointed or elected in such manner as the General Assembly may 
direct/ and that of Art. II, $ 27, that ‘ the election and appointment of 
all officers, and the filling of all vacancies not otherwise provided for 
by this Constitution, or the Constitution of the United States, shall be 
made in such manner as may be directed by law/ are equivalent to each 
other. When the Legislature ‘ directs/ it directs by law. Its appro- 
priate voice is the voice of law. The prohibition attached, by way 
of proviso, expressly to the one, applies equally to both, and is no 
more in conflict with the one than with the other.” State v. Kennon, 7 
• Ohio St., 546-561, 562 — Brinkerhoff, J. And see Art. II, \ 27, Note 3. 

1 Debates, 365, 539-542, 549 ; 2 Debates, 340-343, 349, 700, 821, 843, 
861, 870. 

Sec. 3. The governor shall have power to fill all vacan- 
cies that may occur in the offices aforesaid, until the next 
session of the general assembly, and, until a successor to his 
appointee shall be confirmed and qualified. 

1 Debates, 549 ; 2 Debates, 341, 349, 700, 821, 843, 861, 870. 


ARTICLE VIII. 

PUBLIC DEBT AND PUBLIC WORKS. 

Section 1. The state may contract debts, to supply casual 
deficits or failures in revenues, or to meet expenses not 
otherwise provided for; but the aggregate amount of 
such debts, direct and contingent, whether contracted by 
virtue of one or more acts of the general assembly, or at 
different periods of time, shall never exceed seven hundred 
and fifty thousand dollars ; and the money, arising from the 
creation of such debts, shall be applied to the purpose for 
which it was obtained, or to repay the debts so contracted, 
and to no other purpose whatever. 

See Art. VIII , § 3, note. 

1 Debates, 292, 466-472 ; 2 Debates, 313, 314, 362, 363, 392, 
424-426, 810, 837, 861, 870. 

Sec. 2. In addition to the above limited power, the state 
may contract debts to repel invasion, suppress insurrection, 
defend the state in war, or to redeem the present outstand- 
ing indebtedness of the state ; but the money, arising from 
the contracting of such debts, shall be applied to the pur- 
pose for which it was raised, or to repay such debts, and to 
no other purpose whatever; and all debts, incurred to re- 
deem the present outstanding indebtedness of the state, 
shall be so contracted as to be payable by the sinking fund, 
hereinafter provided for, as the same shall accumulate. 

See Art. VIII , § 3, Note; Art. II , § 28, note 1. 

1 Debates, 292, 466, 472 ; 2 Debates, 312—314, 426, 810, 837, 
861, 870. 


Vacancies, 9 
how filled. 


Public debt. 


Additional 
debt, and for 
what pur- 
poses. 


92 


CONSTITUTION OF OHIO, 1851. 


The state to 
create no 
other debt. 




Credit of 
state. 

The state 
shall not be- 
come joint 
owner or 
stockholder. 


Sec. 3. Except the debts above specified in sections one 
and two of this article, no debt whatever shall hereafter be 
created by, or on behalf of the state. 

The natural and obvious meaning of the first three sections of this 
article applies their limitations to the state alone, and not to her sub- 
divisions. Cass v. Dillon, 2 Ohio St., 60S ; Walker v. Cincinnati, 21 Ohib 
St., 14-52. 

The Board of Pubh’c Works made contracts on behalf of the state, 
stipulating to pay yearly, for the period of five years, for materials 
and repairs of the canals of the state, an amount in the aggregate of 
$1,375,000. Held: 1. That, except in certain specified cases, no debt 
of any kind can be created on behalf of the state. 2. That no officers 
of the state can enter into any contract, except in cases specified in the 
Constitution, whereby the General Assembly will, two years after, be 
bound to make appropriations either for a particular object or a fixed 
amount; the power and the discretion, intact, to make appropriations, 
in general, devolving on each biennial General Assembly, and for the 
period of two years. 3. The contracts of the Board of Public Works 
creating a present obligation to pay for the period of five years a cer- 
tain amount, do not come within said constitutional exceptions, and 
are in contravention of the provisions of Art. VIII, $ 3, and Art. II, 
# 2. State v. Medberry, 7 Ohio St., 522. 

1 Debates, 292, 466, 472 ; 2 Debates, 313, 314, 426, 810, 837, 861, 870. 

Sec. 4. The credit of the state shall not, in any manner, 
be given or loaned to, or in aid of, any individual association 
or corporation whatever ; nor shall the state ever hereafter 
become a joint owner, or stockholder, in any company or 
association in this state, or elsewhere, formed for any purpose 
whatever. 

It was competent for the Legislature, under the Constitution of 1802, 
to construct works of internal improvement, on behalf of the state, or 
to aid in their construction by subscribing to the capital stock of cor- 
porations created for that purpose, and to levy taxes to raise the 
means ; and, by an exercise of the same power, to authorize a county 
or township to subscribe to a work of that character running through 
or into such county or township, and to levy a tax to pay the subscrip- 
tion. C. W. & Z. R. R. Co. v. Com. of Clinton Co., 1 Ohio St., 77 ; S. & 
I. R. R. Co. v. North Tp., Ib., 105 ; Loomis v. Spencer, lb., 153 ; Cass v. 
Dillon, 2 Ohio St., 608; Thompson v. Kelley, Ib., 647; State v. Com. of 
Clinton Co., 6 Ohio St., 280 ; State v. Pan Horne, 7 Ohio St., 327 ; State v. 
Union Tp., 8 Ohio St., 394; Paris Tp. v. Cherry, Ib., 564; Treadwell v. 
Com. of Hancock Co., 11 Ohio St., 183 ; State v. Com. of Hancock Co., 12 
Ohio St, 596; Goshen Tp. v. Shoemaker, Ib., 624; Com. of Knox Co. v. 
Nichols, 14 Ohio St., 260; Fosdick v. Perrysburg, Ib., 472; Shoemaker v. 
Goshen Tp., Ib., 569 ; Walker v. Cincinnati, 21 Ohio St., 14-43. 

1 Debates, 292, 466, 472 ; 2 Debates, 313, 314, 426, 427, 810, 837, 861, 
870. 












































I 




















































































































































CONSTITUTION OF OHIO, 1851. 


93 


Sec. 5. The state shall never assume the debts of any 
county, city, town, or township, or of any corporation what- 
ever, unless such debt shall have been created to repel in- 
vasion, suppress insurrection, or defend the state in war. 

“The clear implications of this section are, that counties, cities, 
towns and townships may create debts to repel invasion, suppress in- 
surrection, or defend the state in war, which the state may assume ; 
and may also create debts for other purposes, which the state is for- 
bidden to assume.” Walker v. Cincinnati, 21 Ohio St., 14-52— Scott, C. J. 

1 Debates, 292, 467, 472, 538 ; 2 Debates, 295, 313, 314, 427, 810, 837, 
861, 870. 

Sec. 6. The general assembty shall never authorize any 
county, city, town, or township, by vote of its citizens, or 
otherwise, to become a stockholder in any joint stock com- 
pany, corporation, or association whatever ; or to raise 
money for, or loan its credit to, or in aid of, any such com- 
pany, corporation, or association. 

What the General Assembly is thus prohibited from doing directly, 
it has no power to do indirectly. Taylor v. Com. of Knox Co., 22 Ohio 
St. 

Where public credit or money is furnished by any of the subdivi- 
sions of the state named, to be used in part construction of the work 
which, under the statute authorizing its construction, must be com- 
pleted, if completed at all, by other parties out of their own means, 
who are to own or have the municipal control and management of the 
work when completed, the public money or credit thus used can only 
be regarded as furnished for or in aid of such parties lb. 

The act of April 23, 1872, to authorize counties, townships and the 
municipalities therein named to build railroads (69 0. L., 84), author- 
izes the raising of money by taxation, which is equally applicable to 
the unlawful purpose of aiding railroad companies and others engaged 
in building and operating railroads as it is to any lawful purpose, and 
gives to the officers intrusted with the control and application of the 
money thus raised no means or power of discrimination as to the law- 
fulness or unlawfulness of the work or purpose to which it is to be ap- 
plied, and thus is in contravention of section six, article eight, of the 
Constitution, and therefore void. lb. 

“ The mischief which this section interdicts is a business partnership 
between a municipality or subdivision of the state, and individuals or 
private corporations or associations. It forbids the union of public 
and private capital or credit in any enterprise whatever. In no project 
originated by individuals, whether associated or otherwise, with a view 
to gain, are the municipal bodies named permitted to participate in 
such manner as to incur pecuniary expense or liability. They may 
neither become stockholders nor furnish money or credit for the benefit 
of the parties interested therein. Though joint stock companies, cor- 
porations and associations only are named, we do not doubt that the 
reason of prohibition would render it applicable to the case of a single 
individual. The evil would be the same, whether the public suffered 


No assump- 
tion of debts 
by the state. 


Counties, cit- 
ies, towns, or 
townships, 
not author- 
ized to be- 
come stock- 
holders, etc. 


CONSTITUTION OF OHIO, 1851. 




from the cupidity of a single person, or from that of several persons 
associated together. As this alliance between public and private in- v 
terests is clearly prohibited in respect to all enterprises, of whatever 
kind, if we hold that these municipal bodies cannot do on their own 
account what they are forbidden to do on the joint account of them- 
selves and private partners, it follows that they are powerless to make 
any improvement, however necessary, with their own means, and on 
their own sole account. We may be very sure that a purpose so un- 
reasonable was never entertained by the framers of the Constitution.” 

Walker v. Cincinnati, 21 Ohio St., 14-54, 55 — Scott, C. J. 

The act of May 4, 1869, “ relating to cities of the first class having a 
population exceeding one hundred and fifty thousand inhabitants” 

(66 0. L., 80), authorizing such cities to construct a railroad terminat- 
ing in and essential to the interests of themselves, and to borrow, as a 
fund for that purpose, a sum of money not exceeding ten millions of 
dollars, violates neither the express nor implied prohibitions of this 
section. Walker v. Cincinnati, 21 Ohio St., 14, affirming 1 Cin. Sup. C. 

Rep., 121. 

The act of March 29, 1867 (S. & S., 671), “to authorize the county 
commissioners to construct roads on petition of a majority of resident 
land-owners along and adjacent to the line of said road,” etc., does not 
violate this section. State v. Com. of Warren Co., 17 Ohio St., 558. 

This section plainly refers to future legislation alone, and the acts it 
prohibits are not subscriptions under laws existing at the time of the 
adoption of the new Constitution, but the making of any more such 
laws. Cass v. Dillon, 2 Ohio St., 608; State v. Trustees of Union Town- 
ship, 8 Ohio St., 394; Com. of Knox Co. v. Nichols, 14 Ohio St., 260; 

State v. Perrysburg, 14 Ohio St., 472 ; Thompson v. Kelly, 2 Ohio St., 647 ; 
and see Art. VIII, § 4, Note. 

1 Debates, 292, 467, 472, 538; 2 Debates, 300-314, 427, 810, 837, 861, 

870. 

Sec. 7. The faith of the state being pledged for the pay- 
ment of the public debt, in order to provide therefor, there 
shall be created a sinking fund, which shall be sufficient to 
pay the accruing interest on such debt, and, annually, to 
reduce the principal thereof, by a sum not. less than one hun- 
dred thousand dollars, increased yearly, and each and every 
year, by compounding, at the rate of six per cent, per an- 
num. The said sinking fund shall consist, of the net annual 
income of the public works and stocks owned by the state, 
of any other funds or resources that are, or may be, provided 
by law, and of such further sum, to be raised by taxation, 
as may be required for the purposes aforesaid. 

1 Debates, 292, 467, 472-474, 476-492, 495-512, 514-524 ; 

2 Debates, 295-299, 312-314, 427, 810, 837, 861, 870. 

Sec. 8. The auditor of state, secretary of state, and attor- 
ney general, are hereby created a board of commissioners, to 
be styled, “ The Commissioners of the Sinking Fund.” 

1 Debates, 292, 467, 524; 2 Debates, 313, 314, 427, 810, 837, 

861, 870. ’ ’ ’ ’ ’ 


Sinking 

fund. 


The commis- 
sioners of 
the sinking 
fund. 




I 












CONSTITUTION OF OHIO, 1851. 


95 


Sec. 9. The commissioners of the sinking fund shall, 
immediately preceding each regular session of the general 
assembly, make an estimate of the probable amount of the 
fund, provided for in the seventh section of this article, from 
all sources except from taxation, and report the same, to- 
gether with all their proceedings relative to said fund and 
the public debt, to the governor, who shall transmit the 
same with his regular message, to the general assembly; 
and the general assembly shall make all necessary provision 
for raising and disbursing said sinking fund, in pursuance 
of the provisions of this article. 

1 Debates, 292, 467, 524-537; 2 Debates, 299, 313, 314, 427, 
810, 837, 861, 870. 

Sec. 10. It shall be the duty of said commissioners faith- 
fully to apply said fund, together with all moneys that 
may be, by the general assembly, appropriated to that ob- 
ject, to the payment of the interest, as it becomes due, and 
the redemption of the principal of the public debt of the 
state, excepting only the school and trust funds held by the 
state. 

1 Debates, 292, 467, 537, 538; 2 Debates, 313, 314, 427, 810, 
837, 861, 870. 

Sec. 11. The said commissioners shall, semi-annually, 
make a full and detailed report of their proceedings to the 
governor, who shall, immediately, cause the same to be pub- 
lished, and shall also communicate the same to the general 
assembly, forthwith, if it be in session, and if not, then at 
its first session after such report shall be made. 

1 Debates, 292, 467, 537, 538; 2 Debates, 313, 314, 427, 810, 

837, 838, 861, 870. 

Sec. 12. So long as this state shall have public works 
which require superintendence, there shall be a board of 
public works, to consist of three members, who shall be 
elected by the people, at the first general election after the 
adoption of this constitution, one for the term of one year, 
one for the term of two years, and one for the term of three 
years ; and one member of said board shall be elected annu- 
ally thereafter, who shall hold his office for three years. 

1 Debates, 292, 467, 537, 538; 2 Debates, 300, 362,427, 810, 

838, 861, 870. 

Sec. 13. The powers and duties of said board of public 
works, and its several members, and their compensation, 
shall be such as now are, or may be prescribed by law. 

No powers can be exercised by the board under laws existing when 
the Constitution took effect, unless such laws are consistent with the 
provisions of the Constitution. State v. Medberry, 7 Ohio St., 522. “ The 

laws referred to are only such as are in harmony with the Constitu- 
tion.” Ib., 544— Swan, J. ; and see Art. VIII, l 3, Note. 

1 Debates, 292, 467, 538; 2 Debates, 427, 810, 838, 861, 862, 870. 


Their bien- 
nial report. 


Application 
of sinking 
fund. 


Semi-annual 

report. 


Board of 

public 

works. 


Their pow- 
ers, duties, 
and compeK- 
sation. 


96 


CONSTITUTION OF OHIO, 1851. 


Who shall 
perform mil- • 
itary duty. 


What offi- 
cers to be 
elected, and 
by whom. 


Same sub- 
ject. 


Governor to 
commission 
officers, and 
have power 
to call forth 
the militia. 


Public arms. 


ARTICLE IX. 

MILITIA. 

Sec. 1. All white (1) male citizens, residents of this 
state, being eighteen years of age, and under the age of 
forty five years, shall be enrolled in the militia, and perform 
military duty, in such manner, not incompatible with the 
constitution and laws of the United States, as may be pre- 
scribed by law. (2) 

(1) See Art. V, § 1, Note 1. 

(2) See Art. XII , § 1, Note. 

1 Debates, 191. 449-458, 461-464; 2 Debates, 220, 346-352, 
651, 687, 688, 695, 821, 843, 862, 870. 

Sec. 2. Majors general, brigadiers general, colonels, lieu- 
tenant colonels, majors, captains, and subalterns, shall be 
elected by the persons subject to military duty, in their 
respective districts. ( See Const. 1802, Art. V .) 

1 Debates, 191, 464-466; 2 Debates, 220, 346, 350, 651, 688, 
695, 821, 843, 862, 870. 

Sec. 3. The governor shall appoint the adjutant general, 
quartermaster general, and such other staff officers, as may 
be provided for by law. Majors general, brigadiers general, 
colonels, or commandants of regiments, battalions, or squad- 
rons, shall, severally, appoint their staff, and captains shall 
appoint their non-commissioned officers and musicians. 
(See Const. 1802, Art. V.) 

1 Debates, 191, 465, 466 ; 2 Debates, 220, 346, 348, 350, 651, 
688, 695, 821, 843, 862, 870. 

Sec. 4. The governor shall commission all officers of the 
line and staff, ranking as such ; and shall have power to call 
forth the militia, to execute the laws of the state, to suppress 
insurrection, and repel invasion. (See Const. 1802, Art. F) 


“The faithful execution of the laws when enacted, expounded and 
applied by the courts to cases when necessary, is confided to the exec- 
utive. The militia is an arm of the executive power. . . . Not a 
word is found in the Constitution giving countenance to the opinion 
sometimes expressed, and more frequently felt, that the militia, or 
military force, instead of being a means to be employed by the exec- 
utive department in executing the important duty of executing the 
laws, are a distinct department, equal to either of the others, and in- 
dependent of their control.” State v. Coulter, Wright’s Rep., 421-424, 
425. 

2 Debates, 350, 651, 688, 695, 821, 843, 862, 870. 


Sec. 5. The general assembly shall provide, by law, for 
the protection and safe keeping of the public arms. 

1 Debates, 191, 466; 2 Debates, 220, 346, 651, 688, 695, 821, 
843, 862, 870. 






















































































































































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CONSTITUTION OF OHIO, 1851. 


/ 


97 


ARTICLE X. 

COUNTY AND TOWNSHIP ORGANIZATIONS. 

Sec. 1. The general assembly shall provide, by law, for 
the election of such county and township officers as may be 
necessary. {See Const. 1802, Art. FT, § 1, 8.) 

The Constitution did not create the municipalities of the state, nor 
does it attempt to enumerate their powers. It recognizes them as 
things already in being, with powers that will continue to exist, so far 
as they are consistent with the organic law, until modified or repealed. 
Cass v. Dillon , 2 Ohio St., 608. 

2 Debates, 565, 640-642, 644, 654, 810, 838, 862, 870. 

Sec. 2. County officers shall be elected on the second 
Tuesday of October, until otherwise directed by law, by the 
qualified electors of each county, in such manner, and for 
such term, not exceeding three years, as may be provided 
by law. {See^ Const. 1802, Art. 6, § 1.) 

The power to fix the times of holding elections for county officers is 
vested by the Constitution in the Legislature, and when a time has 
been so fixed by that body, any election for such officers held at a dif- 
ferent time is unauthorized and void. State v. Dombaugh, 20 Ohio St., 
167. 

2 Debates, 565, 640-644, 654, 810, 838, 862, 870. 

Sec. 3. No person shall be eligible to the office of sheriff, 
or county treasurer, for more than four years, in any period 
of six years. {See Const. 1802, Art. 6, § 1.) 

2 Debates, 565, 643, 644, 654, 810, 838, 862, 870. 

Sec. 4. Township officers shall be elected on the first 
Monday of April, annually, by the qualified electors of their 
respective townships, and shall hold their offices for one 
year, from the Monday next succeeding their election, and 
until their successors are qualified. 

2 Debates, 565, 644, 654, 810, 825, 838, 862, 870. 

Sec. 5. No money shall be drawn from any county or 
township treasury, except by authority of law. 

The board of county commissioners has no power, under the Con- 
stitution and laws of Ohio, to employ an attorney to prosecute criminal 
complaints before the examining magistrates of the county, except in 
cases in which the county, in its quasi corporate capacity, has a direct 
interest. Nor can the board of commissioners be compelled, by man- 
damus, to pay for such services out of the county treasury. State v. 
Com. of Franklin Co ., 21 Ohio St., 648. 

2 Debates, 565, 644, 654, 810, 825, 838, 862, 870. 

Sec. 6. Justices of the peace, and county and township 
officers, may be removed, in such manner and for such cause, 
as shall be prescribed by law. 

1 Debates, 298; 2 Debates, 151, 318, 566, 633, 664, 810, 838, 
862, 870. 


County and 

township 

officers. 


County offi- 
cers, when 
elected. 


Eligibility of 
sheriff and 
treasurer. 


Township of- 
ficers, when 
elected. 


County and 

township 

treasuries. 


What offi- 
cers may be 
removed. 


98 


CONSTITUTION OF OHIO, 1851. 


Local taxa- 
tion. 


Apportion- 
ment for 
members of 
the general 
assembly. 


Ratio of rep- 
resentation 
in house. 


Same 

subject. 


Sec. 7. The commissioners of counties, the trustees of 
townships, and similar boards, shall have such power of 
local taxation, for police purposes, as may be prescribed by 
law. 

The construction of drains by townships, in cases where the public 
health, convenience or welfare demands it, is within the meaning of 
“police purposes.” Sessions v. CrunJcilton, 20 Ohio St., 349. 

2 Debates, 565, 644, 747, 748, 775, 794, 805, 833, 838, 862, 870. 


ARTICLE XI. 

APPORTIONMENT. 

Section 1. The apportionment of this state for members 
of the general assembly, shall be made every ten years, after 
the year one thousand eight hundred and fifty-one, in the 
following manner : The whole population of the state, as 
ascertained by the federal census, or in such other mode as 
the general assembly may direct, shall be divided by the 
number “one hundred,” and the quotient shall be the ratio 
of representation in the house of representatives, for ten 
years next succeeding such apportionment. 

“ The apportionment of the state must be regarded as made by the 
Convention, and none the less so because the approval of the people 
was made necessary to its ultimate effect. They but ratified and ap- 
proved an act already done by their representatives in convention, and 
were not, in any correct sense, the authors of the act itself.” State v. 
Dudley , 1 Ohio St., 437-442 — Ranney, J. 

“The Constitution apportions political power amongst the inhabit- 
ants of the state, as nearly equally as possible in proportion to numbers, 
without any regard whatever to property, or, indeed, to any other cir- 
cumstance. Inhabitants alone are represented ; a given number in 
one place exercise the same political power, as a like number in any 
other locality. Some departure from the absolute equality of numbers 
is allowed in favor of the inhabitants of small counties, in the consti- 
tution of the House of Representatives ; but this in no wise changes the 
basis of representation from population to territory or property.” lb. 

1 Debates, 460 ; 2 Debates, 5, 6, 708, 748, 767, 781, 811-813, 845, 846, 
862, 870. 


Sec. 2. . Every, county having a population equal to one- 
lialf of said ratio, shall be entitled to one representative ; 
every county, containing said ratio, and three-fourths over, 
shall be entitled to two representatives ; every county, con- 
taining three times said ratio, shall be entitled to three rep- 
resentatives ; and so on, requiring after the first two, an 
entire ratio for each additional representative. 

^1 Debates, 460; 2 Debates, 6, 708, 748-751, 782, 846, 862, 
870. 




















































































































































































, ' 
















CONSTITUTION OF OHIO, 1851. 


99 


Sec. 3. When any county shall have a fraction above the 
ratio, so large, that being multiplied by five, the result will 
be equal to' one or more ratios, additional representatives 
shall be apportioned for such ratios, among the several ses- 
sions of the decennial period, in the following manner: If 
there be only one ratio, a representative shall be allotted to 
the fifth session of the decennial period ; if there are two 
ratios, a representative shall be allotted to the fourth and 
third sessions, respectively; if three, to the third, second, 
and first sessions, respectively; if four, to the fourth, third, 
second, and first sessions, respectively. 

1 Debates, 460 ; 2 Debates, 6, 708, 751-753, 756-766, 781, 
782, 820, 846, 862, 870. 

Sec. 4. Any county, forming with another county or 
counties, a representative district, during one decennial 
period, if it have acquired sufficient population at the next 
decennial period, shall be entitled to a separate representa- 
tion, if there shall be left, in the district from which it shall 
have been separated, a population sufficient for a represent- 
ative ; but no such change shall be made, except at the reg- 
ular decennial period for the apportionment of representa- 
tives. 

1 Debates, 460; 2 Debates, 6, 708, 765, 766, 782, 846, 862, 
870. 

Sec. 5. If, in fixing any subsequent ratio, a county, pre- 
viously entitled to a separate representation, shall have less 
than the number required by the new ratio for a represent- 
ative, such county shall be attached to the county adjoining 
it, having the least number of inhabitants ; and the repre- 
sentation of the district, so formed, shall be determined as 
herein provided. 

1 Debates. 460 ; 2 Debates, 6, 708, 766, 767, 782, 846, 862, 
870. 

Sec. 6. The ratio for a senator shall, forever hereafter, be 
ascertained, by dividing the wffiole population of the state 
by the number thirty-five. 

1 Debates, 460 ; 2 Debates, 7, 708, 766, 782, 846, 862, 870. 

Sec. 7. The state is hereby divided into thirty-three sen- 
atorial districts, as follows : The county of Hamilton shall 
constitute the first senatorial district; the counties of But- 
ler and Warren, the second; Montgomery and Preble, the 
third ; Clermont and Brown, the fourth ; Greene, Clinton 
and Fayette, the fifth ; Ross and Highland, the sixth ; 
Adams, Pike, Scioto and Jackson, the seventh ; Lawrence, 
Gallia, Meigs and Vinton, the eighth ; Athens, Hocking and 
Fairfield, the ninth ; Franklin, and Pickaway, the tenth ; 
Clarke, Champaign and Madison, the eleventh ; Miami, 
Darke and Shelby, the twelfth ; Logan, Union, Marion and 
Hardin, the thirteenth; Washington and Morgan, the four- 
teenth ; Muskingum and Perry, the fifteenth ; Delaware and 
Licking, the sixteenth ; Knox and Morrow, the seventeenth ; 
Coshocton and Tuscarawas, the eighteenth ; Guernsey and 
Monroe, the nineteenth ; Belmont and Harrison, the twen- 
tieth ; Carroll and Stark, the twenty-first; Jefferson and 
Columbiana, the twenty-second ; Trumbull and Mahoning, 


Same 

subject. 


Same 

subject. 


Same 

subject. 


Ratio for a 
senator. 


Senatorial 

districts. 


100 


CONSTITUTION OF OHIO, 1851. 


Same 

subject. 


Same 

subject. 


Apportion- 
ment of rep- 
resentatives 
for ten years. 


the twenty-third ; Ashtabula, Lake and Geauga, the twenty- 
fourth ; Cuyahoga, the twenty-fifth ; Portage and Summit, 
the twenty-sixth ; Medina and Lorain, the twenty-seventh ; 
Wayne and Holmes, the twenty-eighth ; Ashland and Rich- 
land, the twenty-ninth ; Huron, Erie, Sandusky and Ottawa, 
the thirtieth; Seneca, Crawford and Wyandot, the tttirty- 
first ; Mercer, Auglaize, Allen, Van Wert, Paulding, Defiance 
and Williams, the thirty-second; and Hancock, Wood, Lucas, 
Fulton, Henry and Putnam, the thirty-third : For the first 
decennial period, after the adoption of this constitution, each 
of said districts shall be entitled to one senator, except the 
first district, which shall be entitled to three senators. 

“ The whole state is divided into districts, and the limits of each 
clearly and definitely fixed. These limits were, in every instance, de- 
scribed by county lines, as they existed when the Constitution was 
adopted by the Convention — the boundaries of counties being referred 
to and adopted, from convenience and propriety, as the boundaries of 
districts ; and thus making the limits of each district as certain as 
though it had been marked out by natural or artificial objects. While 
the counties remained, as they then were, of course, no one of them 
could be divided, so as to fall into different districts. But while the 
boundaries of counties, to a certain extent, and districts, were fixed 
upon the same lines, they were yet independent of each other ; so that 
whatever changes might be made in county limits, the lines of the dis- 
tricts remained as before, subject only to such changes as are provided 
for in the Constitution itself.” State v. Dudley , 1 Ohio St., 437-443 — 
Ranney, J. 

1 Debates, 4G0, 461 ; 2 Debates, 7, 709, 710, 783-787, 822, 823, 846, 862, 
870. 

Sec. 8. The same rules shall be applied, in apportioning 
the fractions of senatorial districts, and in annexing dis- 
tricts, which may hereafter have less than three-fourths of a 
senatorial ratio, as are applied to representative districts. 

1 Debates, 460; 2 Debates, 7, 708, 766-771, 781, 782, 846, 
862, 870. 

Sec. 9. Any county forming part of a senatorial district, 
having acquired a population equal to a full senatorial ratio, 
shall be made a separate senatorial district, at any regular 
decennial apportionment, if a full senatorial ratio shall be 
left in the district from which it shall be taken. 

2 Debates, 708, 767, 782, 846, 863, 870. 

Sec. 10. For the first ten years, after the year one thous- 
and eight hundred and fifty-one, the apportionment of rep- 
resentatives shall be as provided in the schedule, and no 
change shall ever be made in the principles of representa- 
tion, as herein established, or, in the senatorial districts, 
except as above provided. All territory, belonging to a 
county at the time of any apportionment, shall, as to the 
right of representation and suffrage, remain an integral 
part thereof, during the decennial period. 

“ The exception contained in this section refers to the eighth and 
\ 







































■ . 














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CONSTITUTION OF OHIO, 1851. 


101 

ninth sections. . . . The provisions of this section irrevocably fix 
the districts, and apportion the representation for ten years. At the 
expiration of that period, other sections of the eleventh article direct 
specifically in what manner the executive officers, charged with the 
duty, shall ascertain and fix it, for another period of ten years. It is 
manifest that no change, alteration, or modification of the representa- 
tive districts, is allowed between the periods of decennial apportion- 
ment ; unlike the senate districts, they are not forever to remain un- 
changed. On the contrary, they must, of necessity, at the expiration 
of each ten years, so change as to conform to the boundaries of coun- 
ties, as they are then found to exist; and the limits of districts, at 
those periods, become again identical with those of counties.” State 
v. Dudley, 1 Ohio St., 437-444, 446, 447— Ranney, J. 

1 Debates, 460 ; 2 Debates, 7, 708, 767, 771, 782, 846, 863, 870. 

Sec. 11. The governor, auditor and secretary of state, or 
any two of them, shall, at least six months prior to the Octo- 
ber election, in the year one thousand eight hundred and 
sixty-one, and, at each decennial period thereafter, ascertain 
and determine the ratio of representation, according to the 
decennial census, the number of representatives and sena- 
tors each county or district shall be entitled to elect, and for 
what years, within the next ensuing ten years, and the gov- 
ernor shall cause the same to be published, in such manner 
as shall be directed by law. 

1 Debates, 460; 2 Debates, 7, 708, 767, 782, 846, 863, 870. 

JUDICIAL APPORTIONMENT. 

Sec. 12. For judicial purposes, the state shall be appor- Judicial 
tioned as follows : purposes. 

The county of Hamilton, shall constitute the first district, Firgt 
which shall not be subdivided ; and the judges therein, may district, 
hold separate courts, or separate sittings of the same court, 
at the same time. 

The counties of Butler, Preble and Darke, shall constitute g econ d 
the first subdivision, Montgomery, Miami and Champaign, district, 
the second, and Warren, Clinton, Greene and Clarke, the 
third subdivision, of the second district ; and, together, shall 
form such district. 

The counties of Shelby, Auglaize, Allen, Hardin, Logan, Third 
Union and Marion shall constitute the first subdivision, district. 
Mercer, Van Wert, Putnam, Paulding, Defiance, Williams, 

Henry and Fulton, the second, and Wood, Seneca, Hancock, 

Wyandot and Crawford, the third subdivision, of the third 
district ; and, together, shall form such district. 

The counties of Lucas, Ottawa, Sandusky, Erie and Huron, Fourtll 
shall constitute the first subdivision, Lorain, Medina and district. 
Summit, the second, and the county of Cuyahoga, the third 
subdivision, of the fourth district ; and, together, shall form 
such district. 

The counties of Clermont, Brown and Adams, shall con- 
stitute the first subdivision, Plighland, Ross and Fayette, the district, 
second, and Pickaway, Franklin and Madison, the third 


When the 
governor, 
auditor, and 
secretary of 
state to 
determine 
ratio of rep- 
resentation. 


/ 


102 


CONSTITUTION OF OHIO, 1851. 


Sixth 

district. 


Seventh 

district. 


Eighth 

district. 


Ninth 

district. 


New coun- 
ties attach- 
ed. 


Poll tax. 


subdivision, of the fifth district ; and, together, shall form 
.such district. 

The counties of Licking, Knox and Delaware, shall consti- 
tute the first subdivision, Morrow, Richland and Ashland, 
the second, and Wayne, Holmes and Coshocton, the third 
subdivision, of the sixth district ; and, together, shall form 
such district. 

The counties of Fairfield, Perry and Hocking, shall con- 
stitute the first subdivision, Jackson, Vinton, Pike, Scioto 
and Lawrence, the second, and Gallia, Meigs, Athens and 
Washington, the third subdivision, of the seventh district; 
and, together, shall form such district. 

The counties of Muskingum and Morgan, shall constitute 
the first subdivision, Guernsey, Belmont and Monroe, the 
second, and Jefferson, Harrison and Tuscarawas, the third 
subdivision, of the eighth district ; and, together, shall form 
such district. 

The counties of Stark, Carroll and Columbiana, shall con- 
stitute the first subdivision, Trumbull, Portage and Mahon- 
ing, the second, and Geauga, Lake and Ashtabula, the third 
subdivision, of the ninth district ; and, together, shall form 
suc h district 

° 2 Debates, 823, 824, 840, 841, 846, 847, 863, 870. 

Sec. 13. The general assembly shall attach any new 
counties, that may hereafter be erected, to such districts, or 
subdivisions thereof, as shall be most convenient. 

“ This section very clearly applies to any new county erected after 
the adoption of the Constitution by the Convention. This construction 
does not require any effect to be given to the Constitution before the 
first of September, but after it has taken effect, it directs the General 
Assembly what to do with counties erected after the tenth of March ; 
or, in other words, it imperatively requires the General Assembly, 
acting under the Constitution, to attach all counties created after that 
date, to some convenient district and subdivision.” State v. Dudley , 
1 Ohio St., 437-449, 450— Ranney, J. 

2 Debates, 824, 847, 863, 870. 


ARTICLE XII. 

FINANCE AND TAXATION. 

Sec. 1. The levying of taxes, by the poll, is grievous and 
oppressive ; therefore, the general assembly shall never levy 
a poll tax, for county or state purposes. (See Const . 1802, 
Art. VIII , § 23.) 

The sum demanded for license to pursue an employment, when used 
as a means of supplying the public treasury, is a tax on such employ- 
ment. Mays v. Cincinnati, 1 Ohio St., 268 ; Cincinnati v. Bryson, 15 Ohio, 
625 ; Cincinnati v. Buckingham, 10 Ohio, 257-261 ; State v. Proudfit; State 
v. Hibbard, 3 Ohio, 63. 

The fourth section of the act of March 31, 1864, “to organize and 
discipline the militia of Ohio” (61 O. L., 110), which provides that 






CONSTITUTION OF OHIO, 1851. 


103 


“ all persons subject to military duty, and who are not members of 
some volunteer organization, shall either become members of some 
volunteer organization, or shall pay into the county treasury, annually, 
the sum of four dollars, which sum shall be a commutation for fines 
and penalties for neglect to perform military service,” etc., is not in 
conflict w r ith this section. Such commutation is not a tax, but is only 
a means, or instrumentality, by which the General Assembly enforces, 
to the extent deemed necessary, the performance of military duty en- 
joined by Art. IX, § 1. Houston v. Wright, 15 Ohio St., 318. 

1 Debates, 513 ; 2 Debates, 34, 35, 119, 651, 723, 744-747, 755, 789, 793, 
818, 819, 831, 839-842, 851, 863, 870. 

Sec. 2. Laws shall be passed, taxing, (1) by a uniform 
rule, all moneys, credits, (2) investments in bonds, stocks, (3) 
joint stock companies, or otherwise; and also all (4) real 
and personal property, (5) according to its true value in 
money; (6) but burying grounds, public school houses, 
houses used exclusively for public worship, institutions of 
purely public charity, public property used exclusively for 
any public purpose; and personal property, to an amount 
not exceeding in value two hundred dollars, for each indi- 
vidual, may, by general laws, be exempted from taxation ; (7) 
but, all such laws shall be subject to alteration or repeal; 
*tnd the value of all property, so exempted, shall, from time 
to time, be ascertained and published, as may be directed 
by law. (8) 

(1) “ The power of taxation is included in the legislative power. In 
our former Constitution, it was limited in one particular, the prohibi- 
tion of a poll tax. In the present, it is regulated or limited in other 
particulars. This section is not a grant of power, but a regulation of the 
power already granted in the first section of the second article. The ex- 
pression is, ‘ laws shall be passed ;’ not that the ‘ General Assembly shall 
have power to pass.’ So of every provision in the twelfth article, they 
either prohibit or regulate the exercise of the power of taxation in 
specified instances.” Baker v. Cincinnati, 11 Ohio St., 534-543 — Ghol- 
son, J. 

Assessments are not embraced within the meaning of the word 
“ taxing ” in this section. Beeves v. Treas. of Wood Co., 8 Ohio St., 333 ; 
Ridenour v. Saffin, 1 Handy’s Rep., 464. See Art. XIII, § 6, note 3. 

(2) The Constitution permits no deduction of liabilities from moneys 
and credits. Exchange Bank v. Hines, 3 Ohio St., 1 ; Ellis v. Linck, lb., 
66 ; Latimer v. Morgan, 6 Ohio St., 279. 

(3) The state has power to tax shares in the national banks located 
in Ohio, subject to the limitations that such tax shall not exceed the 
rate imposed upon other moneyed capital of individuals, nor that im- 
posed upon shares in the state banks, as provided in the act of Con- 
gress of June 3, 1864. Frazer v. Siebem, 16 Ohio St., 614. 

The shares in national banks thus to be taxed, are to be understood 
as the individual property or choses of the stockholders, as contradis- 
tinguished from aliquot parts of the capital and property of the bank, 
and, as such, may be taxed at their full value, without deduction for 


Taxation by 

uniform 

rule. 


104 


CONSTITUTION OF OHIO, 1851. 


the franchise, for real estate otherwise taxed, or for untaxable bonds 
owned by the bank. Ib. 

(4) The property of every person, however absolute the tenure by 
which it is held, must be liable to bear an equal and just proportion of 
the public burdens, by way of taxation, in return for the protection 
and advantages afforded by the government, and that proportion of 
taxation, must be determined by the legislative power, which extends 
to all persons and property within the state. Toledo Bank v. Bond, 1 
Ohio St., 623. 

All exemptions of any part of the property in a municipal corpora- 
tion, otherwise subject to taxation, from contributing to the general 
revenue fund, are in conflict with this section. Zanesville v. Ridiards, 

5 Ohio St., 589. 

The fact that property subject to taxation has not been listed, / 
although it improperly increases the burden of taxation on the prop- 
erty that is listed, does not render the tax wholly void, or authorize 
the interference of a court of equity. Exchange Bank v. Hines , 3 Ohio 
- St., 1. 

(5) An express direction to impose a tax on all property by a uni- 
form rule, does not necessarily exclude taxation upon that which is 
not property, or cover the whole ground included within the limits of 
the taxing pow T er. Zanesville v. Richards , 5 Ohio St., 589-593; Baker v. 
Cincinnati , 11 Ohio St., 540 ; Cin. Gas. L. & C. Co. v. State, 18 Ohio St., 243* 

A license cannot be regarded as property of any description, and 
consequently is not subject to taxation under this section. But a charge 
may be exacted for it. Although authority to exact payment for a 
license is not expressly conferred in the Constitution, yet the exercise 
of the power not being prohibited, and not being inconsistent with 
any constitutional provisions, the General Assembly may lawfully con- 
fer such powder. Exchange Bank v. Hines, 3 Ohio St., 1 ; Baker v. Cin- 
cinnati, 11 Ohio St., 534; Cin. Gas L. & C. Co. v. State, 18 Ohio St., 243. 

(6) Choses in action are to jt)9 listed at their true value. If a note, 
for instance, is wholly worthless, it is not to be listed at all ; if it is of 
some value, but less than its face, it is to be listed at vrhat it is worth. 
Exchange Bank v. Hines, 3 Ohio St., 17 

(7) “ Power w r as thus conferred on the Legislature to reserve certain 
classes of property, but the absolute right was asserted to tax every 
species of property, by whomsoever owned, and it was not their duty, 
under all circumstances, to make the reservation ; they might exercise 
the authority or not, as they should deem it just and consistent with 
the higher claim of the government ; the law in which the reservation 
should be made, being always subject to alteration and repeal.” Mat- 
lack v. Jones, 2 Disney’s Rep., 5 — Storer, J. 

(8) This section is equally applicable to, and furnishes the governing 
principle for, all laws levying taxes for general revenue, whether for 
state, county, township or municipal purposes. Zanesville v. Richards, 

5 Ohio St., 589; Hill v. Higdon, 5 Ohio St., 243; Reeves v. Treas. of Wood 
Co., 8 Ohio St., 333 ; Baker v. Cincinnati, 11 Ohio St., 534 ; Cin. Gas L. & 

C. Co. v. State, 18 Ohio St., 237 ; Ridenour v. Saffin, 1 Handy’s Rep., 464. 

Section three of the act of April 6, 1866, “for the inspection of gas 
meters,” etc. (S. & S., 158), providing that the salary of tHe inspector 




















CONSTITUTION OF OHIO, 1851. 


105 


of gas meters and illuminating gas shall be paid by the several gas 
light companies in this state, in amounts proportionate to their ap- 
praised valuation, is not in conflict with this section. Cin. Gas L. & 
C. Go. v. State, 18 Ohio St., 237. 

1 Debates, 513 ; 2 Debates, 35-116, 124-130, 651, 723-742, 754, 755, 789, 
793, 818, 819, 826, 828, 830, 831, 839-842, 851, 852, 863, 870. 

Sec. 3. The general assembly shall provide, by law, for 
taxing the notes and bills discounted or purchased, moneys 
loaned, and all other property, (1) effects, or dues, of every 
description (without deduction), (2) of all banks, now exist- 
ing, or hereafter created, and of all bankers, (3) so that all 
property employed in banking, shall always bear a burden 
of taxation, equal to that imposed on the property of indi- 
viduals. (4) 

(1) Moneys deposited with a bank or banker (unless specially de- 
posited) become the moneys of the bank or banker, appertaining to 
the business of banking, and proper to be listed with the other moneys 
belonging to that business ; and this is equally true of general deposits, 
whether they happen to be used in the discounting of paper, or held 
in reserve to pay probable current demands. Ellis v. Linck, 3 Ohio 
St., 66. 

Under the 19th section of the tax krw of April 13, 1852 (Swan’s R. S., 
906), all the assets and resources of a bank, whether specie or balances 
in other banks, must, if employed in any manner whereby the bank 
obtains or reserves a per cent., premium, profit, or a consideration, be 
averaged for taxation. *Specie unemployed, not on hand for sale, and 
from which the bank derives no profit, etc., is not required to be re- 
turned to the assessor. So balances due from other banks, upon which 
no interest, profit or consideration is reserved or received, are not re- 
quired to be returned to the assessor^ Stark County Bank v. McGregor, 
6 Ohio St., 45. (See preceding section, note 3.) 

(2) Bankers (although private) cannot deduct their debts from their 
( moneys and credits. Ellis v. Linck, 3 Ohio St., 66. And see Exchange 
Bank v. Hines, lb. 1. 

(3) Under the act of April 12, 1858 (55 O. L., 128), a partnership en- 
gaged in the business of banking was liable as such to the tax imposed 
by that act. Robinson v. Ward, 13 Ohio St., 293. 

Persons having money employed in the business described in the 
15th section of the tax law of April 13, 1852 (Swan’s R. S., 906), are 
bankers, such as are forbidden to make deductions by this section of 
the Constitution. Ellis v. Linck, 3 Ohio St., 66. 

(4) The tax law of April 13, 1852 (Swan’s R. S., 906), is valid and 
constitutional in the basis it provides for the taxation of banks, bank- 
ers and brokers. The tenth section of that law, which allows individ- 
uals and certain corporations, in giving their tax lists, to deduct their 
liabilities from the amount of their moneys and credits, is repugnant 
to the Constitution of Ohio, and is void. But that section may be 
treated as void wdthout affecting the validity of the remainder of the 
act. The remainder of the act permits no such deduction. Exchange 
Bank v. Hines, 3 Ohio St., 1, followed and approved in Ellis v. Linck, lb. 66. 


Same 

subject. 


106 


CONSTITUTION OF OHIO, 1851. 


Revenue. 


Levying of 
taxes. 


No debt for 
internal im- 
provement. 


Corporate 

powers. 


“This section was inserted that there might be no doubt how exist- 
ing as well as future banks and bankers, whether incorporated or un- 
incorporated, were to be taxed ; that there might be no doubt what 
property of theirs was to be the object of taxation ; and further, to de- 
prive them of even the two hundred dollar exemption which may be 
permitted to individuals under section two. And hence it is that we 
find in it the words * without deduction.’ ” Exchange Bank v. Hines, 3 
Ohio St., 1-46 — Thurman, J. 

1 Debates, 513 ; 2 Debates, 116-119, 651, 664, 742-744, 755, 789-793, 818, 
819, 828-831, 839-842, 851, 863, 870. 

Sec. 4. The general assembly shall provide for raising 
revenue, sufficient to defray the expenses of the state, for 
each year, and also a sufficient sum to pay the interest on 
the state debt. 

1 Debates, 513; 2 Debates, 119, 651, 74S, 755, 789, 793, 818, 
819, 831, 839-842, 851, 863, 870. . 

Sec. 5. No tax shall be levied, except in pursuance of 
law; and every law imposing a tax, shall state, distinctly, the 
object of the same, to which only, it shall be applied. 

The power of taxation being a sovereign power, can only be exer- 
cised by the General Assembly when, and as conferred, by the Consti- 
tution ; and by municipal corporations only when unequivocally dele- 
gated to them by the legislative body. Mays v. Cincinnati, 1 Ohio St., 
268. 

The right of taxation, vital to the existence of every government, 
and one of the most important incidents of sovereignty, has only been 
delegated to the General Assembly, to be used for the purpose of 
accomplishing the lawful objects with which it is charged. It can only 
be exercised to raise money for these purposes; and any attempt to 
use it otherwise, or to control or abridge the right itself, is beyond the 
delegation, and an unauthorized assumption of power. Deholt v. Ohio 
Life Ins. and Trust Co., 1 Ohio St., 563; Toledo Bank v. Bond, lb., 623. 

1 Debates, 513; 2 Debates, 119 ,j651, 744, 748, 755, 789, 793, 818, 819, 
831, 839-842, 851, 863, 870. 

Sec. 6. The state shall never contract any debt for pur- 
poses of internal improvement. 

This restriction applies to the state alone, and not to her subdivisions. 
Cass v. Dillon, 2 Ohio St., 608. 

See Art. VIII, £ 4, Note. 

1 Debates, 513; 2 Debates, 119-124, 651, 748, -754, 755, 789, 793, 818, 
819, 831, 839-842, 851, 863, 870. 


ARTICLE XIII. 

- CORPORATIONS. 

Section 1. The general assembly shall pass no special 
act conferring corporate powers. 

The charter of the Marietta and Cincinnati Railroad Company did 
not authorize it to mortgage or sell its corporate franchise to be a cor- 




CONSTITUTION OF OHIO, 1851. 


JOT 


poration ; and a judicial sale upon mortgages executed by it, would not 
invest the purchasers with any corporate capacity whatever. A 
“ special act” of the General Assembly, undertaking to give such an 
effect to the sale, and authorizing the purchasers to reorganize, create 
a new stock, and elect another board of director's, is, in substance and 
legal effect, an attempt to create a corporation and confer corporate 
powers by a special act, and is in conflict with this and the fol- 
lowing section. Atkinson v. M. & C. E. E. Co., 15 Ohio St., 21. And see 
Art. XIII, \ 6, Note 2. 

This section in its terms merely prohibits future special legislation 
conferring corporate powers, and does not, expressly nor by implica- 
tion, abrogate former legislation of that character. Citizens’ Bank v. 
Wright, 6 Ohio St., 318 ; State v. Eoosa, 11 Ohio St., 16-25 ; State v. Union 
Tp., 8 Ohio St., 394-400. And see the first note to following section. 

1 Debates, 260, 340-363, 447, 458 ; 2 Debates, 644-650, 654-659, 667, 
675, 851, 863, 870. 


Sec. 2. Corporations may be formed under general laws ; 
but all such laws may, from time to time, be altered or re- 
pealed. 


Corpora- 
tions, how 
formed. 


On March 22, 1850, prior to the adoption of this Constitution, the 
General Assembly passed a special act incorporating the Cincinnati, 
Lebanon and Xenia/ Eailroad Company, authorizing commissioners 
therein named to open books, receive subscriptions to capital stock, and 
thereupon to organize a corporation under it. No steps were taken by 
the commissioners toward such subscription and organization until 
after this Constitution took effect, but such subscriptions were made 
and organization effected within the period limited by the special act 
for that purpose. Held : 1. That the special act was not abrogated or 
repealed by this section of the Constitution. 2. This section is pros- 
pective, and not retrospective, in its intent and application, conferring 
merely an authority to legislate, and does not repeal unaccepted acts 
of incorporation, enacted under the Constitution of 1802. State v. Eoosa, 
11 Ohio St., 16 ; C. W. & Z. E. E. Co. v. Com. of Clinton Co., 1 Ohio St., 
77 ; Cass v. Dillon, 2 Ohio St., 607-623 ; Citizens’ Bank v. Wright, 6 Ohio 
St., 318 ; State v. Van Home, 7 Ohio St., 327 ; State v. Union Tp., 8 Ohio 
St., 394-400; Com. of Knox Co. v. Nichols, 14 Ohio St., 260; Fosdick v. 
Perrysburg, lb., 472. 

A county is not properly a corporation, but is at most but a local or- 
ganization, which, for purposes of civil administration, is invested with 
a few functions bharacteristic of a corporate existence. C. W. & Z. E. E. 
Co. v. Com. of Clinton Co., 1 Ohio St,, 77-89 ; Com. of Hamilton Co. v. 
Mighels, 7 Ohio St., 109 ; Hunter v. Com. of Mercer Co., 10 Ohio St., 520 ; 
State v. Cincinnati, 20 Ohio St., 18-37 ; Boalt v. Com. of Williams Co., 18 
Ohio, 13-16. 

Where a corporation, in pursuance of an act of the Legislature, 
transfers or conveys its franchise to be a corporation to others, the 
transaction, in legal effect, is a surrender or abandonment of its char- 
ter by the corporation, and a grant by the Legislature of a similar 
charter to the transferees or purchasers ; and the charter so granted is 


108 

CONSTITUTION OF OHIO, 1851. 

Dues from 
corpora- 
tions, how 
secured. 

subject to all the provisions of the Constitution existing at the time it 
is so granted. State v. Sherman , 22 Ohio St., 411. 

The act of April 4, 1863 (S. & S., 131), authorizing the purchasers of 
the property of a railroad company to acquire the franchise to be a cor- 
poration by deed from the company, is a general law within the mean- 
ing of this section of the Constitution. Ib. 

But a deed made by such company to a corporation of another state, 
which corporation had become the assignee of property sold as con- 
templated in said act, without any new organization, or taking of stock, 
under the deed, or as a corporation of Ohio, does not constitute the 
foreign corporation, or its members, an Ohio corporation, and in so far 
as said act may assume to create them such, it is unconstitutional, for 
the reason that it does not secure the individual liability of the stock- 
holders. Ib. See first note to following section. 

1 Debates, 260, 363-369, 458 ; 2 Debates, 644, 659-CC2, 675, 676, 851, 
863, 870. 

Sec. 3. Dues from corporations shall be secured, by such 
individual liability of the stockholders, and other means, 
as may be prescribed bylaw; but, in all cases, each stock- 
holder shall be liable, over and above the stock by him or 
her owned, and any amount unpaid thereon, to a further 
sum, at least equal in amount to such stock. 

The Legislature has no power, under the present Constitution of 
Ohio, to create corporations without securing the individual liability of 
their stockholders, at least to the minimum amount required by the 
Constitution; and if the act of incorporation does not secure this, 
either by express provision, or by requiring from the corporators or 
stockholders such acts, of organization or otherwise, as will subject 
them to the constitutional provision, the act will be unconstitutional 
and void. State v. Sherman , 22 Ohio St., 411. 

The liability of individual stockholders is collateral to the principal 
obligation of the corporation, and is to be resorted to by the creditors 
only in case of the insolvency of the corporation, or where payment 
cannot be enforced against it by the ordinary process of execution. 
Wright v. McCormack , 17 Ohio St., 86; Wehrman v. Beakirt, 1 Cin. Sup. 
Court Rep., 230. 

This section is prospective in its intent and application. Citizens’ 
Bank v. Wright , 6 Ohio St., 318; State v. Boosa, 11 Ohio St., 17. 

1 Debates, 260, 369-385, 387-430, 433-443, 458 ; 2 Debates, 644, 667, 668, 
676, 851, 863, 870. 

Corporate 
property- 
subject to 
taxation. 

Sec. 4. The property of corporations, now existing or 
hereafter created, shall forever be subject to taxation, the 
same as the property of individuals. 

A corporate franchise, being a mere privilege or grant of authority 
by the government, is not property of any description, and conse- 
quently not subject to taxation. Exchange Bank v. Hines , 3 Ohio St., 
1-8; Baker v. Cincinnati, 11 Ohio St., 534-540. 

“There was no absolute necessity for this section, for, without it, 







I 


CONSTITUTION OF OHIO, 1851. 

section two of article twelve would have embraced these corporations.” 
Exchange Bank v. Hines , 3 Ohio St., 1-46 — Thurman, J. 

1 Debates, 260, 444, 458; 2 Debates, 659, 664-667, 676, 851, 863, 870. 

Sec. 5. No right of way (1) shall be appropriated to the 
use of any corporation, (2) until full compensation (3) there- 
for be first made in money, or first secured by a deposit of 
money, (4) to the owner, irrespective of any benefit (5) from 
any improvement proposed by such corporation ; which com- 
pensation shall be ascertained by a jury of twelve men, in 
a court of record, (6) as shall bo prescribed by law. (7) 

(1) The General Assembly possesses the constitutional power to 
confer upon a corporation authorized to construct a railroad, the right 
to appropriate grounds necessary for its use for a depot. Giesy v. C. W. 
& Z. B. R. Co., 4 Ohio St., 308. 

Where an incorporated company has, by its charter, authority to 
construct a road between given points, and to appropriate land to the 
width of sixty feet over which to locate the same, and, when finished, 
to charge and collect tolls from travelers who pass over it: Held, 
that after the company has made such an appropriation of land for 
the purpose of its road, and freeholders have, in accordance with the 
provisions of the charter, ascertained and determined the owner’s 
damage, it may, within the sixty feet of ground used for the road, 
build a toll-house and dig a well for the accommodation of the toll- 
gatherer. Ward v. Marietta and Nevjport Turnpike and Bridge Co., 6 
Ohio St., 15. 

“Any other structure, within the sixty feet, and essential to the 
carrying out of the object sought by the corporators, and consonant 
with their charter, may, as an unavoidable and legitimate incident 
of the powers given them, be placed within the road limits.” I b., 17 — 
Bowen, J. 

Under the general corporation act of 1852 (S. & C., 275, §§ 21, 27, 28), 
a railroad company has power to condemn land for new side tracks, 
leading from the main road to its depot buildings, whenever they be- 
come necessary in the proper management and operation of the road. 
Toledo and Wabash R. R. Co. v. Daniels, 16 Ohio St., 390. 

Authority to lay down the necessary structure for a street railway, 
in a common highway or street, and to run cars thereon for the car- 
riage of passengers for hire, may be lawfully granted to a company in- 
corporated for that purpose, when no private right of the adjoining 
lot owners is thereby impaired. Street. Railway v. Cummin stiUe, 14 Ohio 
St., 524. 

A railroad company authorized to change the location of its track, on 
account of difficulty of construction and other causes, may do so at 
any time before the construction of its road is completed at the point 
where the change is made. Atkinson v. M. & C. R. R. Co., 15 Ohio Sfi, 
21 . 

But having once located and constructed its road, the company can 
not re-locate it, and for that purpose appropriate private property. 1 b. 
Moorehead v. L M R. R. Co., 17 Ohio, 340. 


109 


Right of 
way. 


110 


CONSTITUTION OF OHIO, 1851. 


So where the charter of a railroad company merely fixes a few points 
through which the road is to pass, from its commencement to its ter- 
minus, leaving the location of the road between the points specified 
to the discretion of the corporation, the railroad company having once 
located the road, their power to re-locate, and for that purpose to ap- 
propriate the property of an individual, has ceased. L. M. B. B. Co. 
v. Naylor , 2 Ohio St., 235. 

The same principle applies, whether the case be that of an attempt 
to re-locate on the property of an individual, or that of using a street 
or highway for the purpose. Ib. 

Grants of corporate power, being in derogation of common right, are 
to be strictly construed — particularly where the power claimed is a 
delegation of the sovereign power of eminent domain. Hence, w r here a 
railroad company is authorized by law only “ to enter upon any land 
to survey, lay down and construct its road,” “ to locate and construct 
branched roads from the main road to any town or places in the several 
counties through which the said road may pass,” to appropriate land 
for “ne6essary side tracks,” and “a right of way over adjacent lands 
sufficient to enable such company to construct and repair its road ” ; 
and such company has located, and is engaged in the construction of 
its permanent main road along the north side of a town, it is not au- 
thorized to appropriate a temporary right of way, for the term of three 
years, along the south side of the town, to be used as a substitute for 
the main track while the same is in course of construction along the 
north side of the town. Currier v. M. & C. B. B. Co., 11 Ohio St., 228. 

A railroad company organized under and made subject to the provi- 
sions of the “ act regulating railroad companies,” of February 11, 1848 
(S. & C., 271), is not authorized to condemn private property to its ex- 
clusive use solely for the purposes of a wharf. Iron R. R. Co. v. Iron- 
ton, 19 Ohio St., 299. 

The power given to municipal corporations to condemn private prop- 
erty for a public wharf is an express pow r er ; and the right of a rail- 
road company to hold property exempt from the exercise of this power 
cannot be extended, by construction, to lands held by the company for 
uses and purposes for which it is not, by law, authorized to condemn 
private property. Ib. 

(2) Corporate existence, and the right to exercise the power of emi- 
nent domain, can only be derived from legislative enactment ; and be- 
fore a company can demand a judgment of 'condemnation, it must 
show that both have been conferred upon it by a valid law, and that it 
has substantially complied with the conditions which the law has an- 
nexed to the exercise of the power. Atldnson v. M. & C. R. R. Co., 15 
Ohio St., 21 ; A. & 0. R. R. Co. v. Sullivant, 5 Ohio St., 276. 

A delegation of the power of eminent domain to a corporation as a 
necessary means to carry into effect the grant of its franchises, cannot 
be made the subject of 'either grant or sale. Coe v. C. P. & I. R. R . 
Co., 10 Ohio St., 372 ; Atkinson v. M. & C. R. R. Co., 15 Ohio St., 21-36. 
(But see Art. XIII, # 2, note.) 

(3) Where a piece or strip of land is, by appropriation made by a 
railroad company, severed from its connection with the other land of 
the owner, in estimating the compensation to be made to the owner, 







CONSTITUTION OF OHIO, 1851. 


1 LI 


not only is the abstract value of the strip or piece taken to be consid- 
ered, but also its relative value, and the effect arising from its sever- 
ance from the residue of the owner’s land, as well as the uses to which 
it is to be appropriated. C. 6c P. R. R. Co. v. Ball, 5 Ohio St., 569. 

Where a right of way originally appropriated for one public use is 
afterward taken for another, the owner of the fee simple title to the 
lands is entitled to recover a full and fair compensation for such addi- 
tional burdens and inconveniences, not common to the general public, 
as accrue to him and his entire tract on which the easement is im- 
posed, by reason of the change of uses to which the lands appropriated 
have been subjected. Hatch v. C. & I. R. R. Co., 18 Ohio St., 92. 

The rightful power of a canal company over the canal, in the ab- 
sence of any statute or contract to limit it, being exclusive, any use of 
the waters of the canal for purposes of navigation, or for watering 
stock by the owner of the fee simple of the lands intersected by it 
being a matter of sufferance and not of right, the loss of these con- 
veniences by reason of the change of use, whereby the canal-bed is 
transformed into the roadwaj^ of a railroad, does not constitute an ele- 
ment to be reckoned in estimating the amount of his compensation, lb. 

Nor is such owner entitled to recover damages on account of in- 
creased danger from fire to his buildings or other structures, by reason 
of such change of use, unless the proximity of his buildings, etc., to 
the railroad be such as to render the danger imminent and appre- 
ciable. Ib. 

Where an entire tract of land is cut asuuder by an appropriation of 
an easement upon it by a canal company, for the purpose of a canal ; 
and this easement is afterward transferred by the canal company to a 
railroad company for the purpose of a railroad; and the latter, in the 
construction of its railroad, throws up embankments or excavates cuts 
across a common public highway, skirting the tract, and constituting 
the only convenient medium of access between the parcels into which 
the tract has been thus severed, the increased inconvenience and dan- 
ger of access thus occasioned between the two parts of the tract are 
peculiar to the owner of the tract in the use of his property, not com- 
mon to the public at large, and for this increase of inconvenience and 
danger, he is entitled to compensation. Ib. 

See Art. I, § 19, note 5. 

(4) See Art. I, # 19, Notes 5, 6. 

(5) The provisions of article one, section nineteen, and of this sec- 
tion — the one requiring compensation to be made without deduction 
for benefits, when property is applied to a public use, and the other 
providing for compensation irrespective of benefits, where it is taken 
by a corporation for a right of way — are, in legal effect, identical. When 
taken under either section, its fair market value in cash, at the time it 
is taken, must be paid to the owner; and the jury, in assessing the 
amount, have no right to consider or make use of the fact, that it has 
been increased in value by the proposal or construction of the im- 
provement. Giesy v. C. W. & Z. R. R. Co., 4 Ohio St., 809. 

In a proceeding by a railroad corporation for an appropriation of a 
right of way under the act of April 30, 1852 (S. & C., 311), the jury, 
after allowing for the full value of the land actually appropriated for 
the right of way, in view of all its uses and relations, without cleduc- 


112 


CONSTITUTION OF OHIO, 1851. 


tions for benefits of any kind, in their estimate and assessment of the 
incidental damages accruing to other lands of the owner, cannot legally 
take into consideration and make allowance for general benefits — or 
such as accrue to the community and vicinage at large — from the con- 
struction of the work proposed. Whether special benefits, or such as 
accrue directly and solely to the owner of the lands appropriated, may 
be taken into consideration and allowed for, quere. L. M. R. R. Co. v. 
Collet, 6 Ohio St., 182. 

This question is answered in part by the following notes : 

Where compensation is claimed for the location and construction of a 
railroad between coal mines and a navigable river on the land-owner’s 
premises, whereby the conveniences of the river transportation for the 
coal to market were injured, or cut oft', it is competent for the railroad 
company to show that the river transportation, in connection with the 
coal banks, had ceased to be valuable, or become of less value, by 
means of the facilities for coal transportation afforded by the railroad, 
for the purpose of reducing the damages. C. & P. R. R. Co. v. Ball, 5 
Ohio St., 568. 

In case of a railroad appropriation for a right of way through a tract 
of land, causing incidental and local injury to the residue of the tract, 
although general resulting benefits from the railroad to the value of 
such residue of the land cannot be taken into account in estimating 
the amount of compensation to be paid the owner ; yet, where a local 
incidental benefit to the residue of the land is blended or connected, 
either in locality or subject matter, with a local incidental injury to 
such residue of the land, the benefit may be considered in fixing the 
compensation to be paid the owner, not by way of deduction from the 
compensation, but of showing the extent of the injury done the value 
of the residue of the land. I'b. 

But in assessing the compensation for a local incidental injury to the 
residue of the owner’s tract of land, arising from the appropriation of 
the right of way, and construction of a railroad, whether a local inci- 
dental benefit arising from the railroad structure to the residue of the 
tract, but not connected either in locality or subject matter with the 
injury, can be taken into the account in estimating the compensation 
for the damages, quere. Ib. 

See Art. I, § 19, Note 8. 

(6) “ It had been held in Willyard v. Hamilton, 7 Ohio, 2 pt., 115, 
that the value of property taken for public uses might rightfully be 
assessed by commissioners, it not being a case for trial by jury, secured 
by the Constitution, and that the proceeding need not be had in a 
court of justice. And the reason why it was not secured by the Con- 
stitution was, that it had never been so regarded in England or this 
country prior to the adoption of that instrument. This course of pro- 
ceeding by commissioners, had been much complained of as unjust 
and oppressive to the owner of the property; and to make at once a 
proceeding within the protection of the Constitution and to be pur- 
sued in a court or justice with a common law jury, this section was in- 
serted, when the Constitution was revised. It intended to afford the 
party the same protection as in other cases of jury trial ; no more and 
no less.” Work v. State, 2 Ohio St., 29(U307— Rannev, J. 

See Art. I, \ 19, Note 7. 






CONSTITUTION OF OHIO, 1851. 


113 


(7 ) If a statute confer authority, as upon a company to construct 
works of public interest, or upon city authorities to improve 
streets, and provide the mode of rendering satisfaction or obtain- 
ing compensation, that mode must he followed. L. M. R. R. Co. v. 

Wh litacre, 8 Ohio St., 590 ; Hueston v. E. & II. R. R. Co., 4 Ohio St., 685 ; 

Akron v. Me Comb, 18 Ohio, 229. 

But a rule of compensation and mode of ascertaining it, prescribed 
by a law passed prior to the adoption of the present Constitution, w r as 
abrogated by it and a new rule and mode of compensation thereby 
prescribed. Perry sburg C. & H. Co. v. Fitzgerald, 10 Ohio St., 513. 

1 Debates, 260, 444-447, 458; 2 Debates, 644, 667, 668, 674-676, 841, 

849-851, 863, 870. 

Sec. 6. The general assembly shall provide for the or- Organization 
ganization of cities, and incorporated villages, (1) by general of cities, etc. 
laws, (2) and restrict their power of taxation, (3) assess- 
ment, (4) borrowing money, contracting debts and loaning 
their credit, so as to prevent the abuse of such power. (5) 

(1) The general act of May 3, 1852 (S. & C., 1493), “ to provide for 
the organization of cities and incorporated villages,” did not annihilate 
and recreate the municipal corporations of the state, but recognized 
and continued them, leaving their corporate identity unaffected. Fos- 
dick v. Perry sburg, 14 Ohio St., 473. 

The power conferred on the General Assembly by this section, to or- 
ganize municipal corporations for local government, involves that of 
bestowing on them authority to provide the necessary means, by taxa- 
tion and assessment, for sustaining and carrying out the objects of such 
government. Were it otherwise, the latter clause directing the Assem- 
bly to “ restrict such power of taxation and assessment,” presupposes 
its existence. Ridenour v. Saffin, 1 Handy’s Rep., 464. 

The power of creating municipal corporations necessarily implies 
authority to confer upon them such police powers as may be necessary 
for their internal government ; and a resolution of a city council re- 
quiring lots, on which is stagnant water, to be filled up, being a reason- 
able sanitary measure for preserving the health of the inhabitants, is 
not in conflict with the Constitution. Bliss v. Kraus, 16 Ohio St., 54. 

Proceedings to annex contiguous territory to the corporate limits of 
a town, in pursuance of the fourteenth section of the act to provide for 
the organization of cities and incorporated villages (S. & C., 1497), are 
not in contravention of the provisions of the Constitution. Powers v. 

Com. of Wood Co., 8 Ohio St., 285; Blanchard v. Bissell, 11 Ohio St., 96. 

(2) Under the restrictive and mandatory provisions of this and the 
first section of this article, the General Assembly cannot, by a special 
act, confer additional powers on a corporation already existing ; and in 
the purview and application of the provisions of these sections, there 
is no distinction between private and municipal corporations. State v. 

Cincinnati, 20 Ohio St., 18. 

The act of April 16, 1870 (67 O. L., 141), “to prescribe the corporate 
limits of Cincinnati,” is a special act. It assumes to confer upon the 
corporation of that city additional powers ; to confer, on certain eondi- 

8 


114 


CONSTITUTION OF OHIO, 1851. 


lions, the power of municipal government, the power of police regula- 
tion, the power of judicial jurisdiction, and of assessment and taxa- 
tion, over a number of outlying incorporated suburban villages and 
other territory not before within the limits of the city ; and is there- 
fore repugnant to the Constitution, and of no binding force and valid- 
ity. lb. 

(3) It is well settled in this state, by repeated adjudications, that, 
independent of constitutional prohibitions, it is within the legitimate 
scope of legislative power to authorize a city to aid in the construction 
of railroads or other public improvements in which such city has a 
special interest, and to impose taxes upon its citizens for that purpose. 
Walker v. Cincinnati , 21 Ohio St., 14; and see numerous authorities 
there cited. 

It follows that it is equally competent for the Legislature to authorize 
the entire construction of such improvements by a city having a special 
interest therein, and to empower the local authorities to provide means 
therefor by the taxation of its citizens. Ib. 

Where the authority given is to construct a line of railroad, having 
one of its termini in such city, it does not affect the question of power, 
that the road when constructed will lie mainly outside of the State of 
Ohio. It is the corporate interest of the municipality which deter- 
mines her right of taxation, and not the location of the road, which 
may well be constructed with the consent of the state into or through 
which it may pass. Ib. 

Taxation can only be authorized for public purposes. Where, there- 
fore, a statute authorizes a county, township or municipality to levy 
taxes not above a given per cent, on the taxable property of the local- 
ity, for the purpose of building so much of a railroad as can be built for 
that amount, and the part of a railroad to be built can be of no public 
utility unless used to accomplish an unconstitutional purpose, such tax 
is illegal, and cannot be imposed. Taylor \. Com. of Boss Co., 22 Ohio St. 

(4) Difference between “taxes” and “assessments.” The former 
are levied for general public purposes, upon all alike ; and are compen- 
sated for by the equal protection of government afforded to all. The 
latter are laid for local purposes, upon local objects, and are recom- 
pensed in local benefits and improvements. Ridenour v. Safin, 1 Handy’s 
Rep., 464. 

“ An assessment is doubtless a tax ; but the term implies something 
more ; it implies a tax of a particular kind, predicated upon the prin- 
ciple of equivalents or benefits, -which are peculiar to the person or 
property charged therewith, and -which are said to be assessed or ap- 
praised according to the measure or proportion of such equivalents. 
Whereas, a simple tax is imposed for the purpose of supporting the gov- 
ernment generally, without reference to any special advantage, which 
may be supposed to accrue to the persons taxed. Taxes must be levied 
without discrimination, equally upon all the subjects of property, 
whilst assessments are only levied upon lands, or some other specific 
property, the subject of the supposed benefits, to repay which the 
assessment is levied.” Ib., 473— Spencer, J. 

“The Constitution did not intend of itself to regulate the manner of 
levying assessments, any more than to prescribe the limits thereof, 










CONSTITUTION OF OHIO, 1851. 


115 


but has wisely left the w r hole matter to legislative discretion, to be ex- 
ercised as circumstances should from time to time justify.” Ib., 475. 

Legislation authorizing cities and villages to levy special assessments 
for the purpose of improving streets, upon real property peculiarly 
and specially benefited, is not repugnant to the Constitution. And 
such assessment may be made upon property abutting on such streets, 
in proportion to the number of feet front abutting thereon, j Ridenour 
v. Saffin, 1 Handy’s Rep., 464; Bonsall v. Lebanon , 19 Ohio, 418; Scovill 
v. Cleveland , 1 Ohio St., 126 ; Hill v. Higdon , 5 Ohio St., 243; Marion v. 
Epler, Ib., 250; Ernst v. Kunkle, Ib., 520; Reeves v. Treas. of Wood Co ., 
8 Ohio St., 333; Foster v. Com. of Wood Co ., 9 Ohio St., 540 ; N. I. R. R. 
Co. v. Connelly , 10 Ohio St., 159; Maloy v. Marietta , 11 Ohio St., 636; 
Creighton v. Scott, 14 Ohio St., 438 ; State v. Com. of Warren Co., 17 Ohio 
St., 558. 

Such assessment may be levied by the acre. Foster v. Com. of Wood 
Co., 9 Ohio St., 540. 

Such assessment need not be levied upon all lands on such street, 
but only on those bounding upon the improvement or near thereto. 
Scovill v. Cleveland, 1 Ohio St., 127. 

The assessment, whether by the front foot or upon the value assessed 
for taxation, must be uniform, operating alike upon all the lots or 
lands abutting upon the improvement, and the fact that one or more 
of the tracts may not have been benefited by the improvement, will 
not render such assessment invalid. N. I. R. R Co. v. Connelly, 10 Ohio 
St., 159. 

Lands appropriated by a railroad company for its track through a 
city, and crossing the improved street at right angles, and upon whieh 
the track was constructed after the work had been completed, is liable 
to such assessment. And as between the railroad company and the 
person performing the work (whatever may be the rights of bona fide 
mortgagees of said railroad), the lands so appropriated may be sold to 
pay said assessment. Ib. 

The power to authorize assessments as distinguished from taxes 
proper, is comprehended in the general grant of legislative power to 
the General Assembly. Reeves v. Treas. of Wood Co., 8 Ohio St., 333 ; 
Baker v. Cincinnati, 11 Ohio St., 534. 

The power to authorize assessments for the construction of free turn- 
pike roads, and the opening of drains, as well as for the improvement 
of streets and sidewalks, exists to the same extent under the present 
Constitution as under that of 1802. Reeves v. Treas. of Wood Co., 8 Ohio 
St., 333. 

(5) The authority and duty to prevent an abuse of the powers of 
taxation and assessment by municipal corporations, is intrusted by 
this section of the Constitution to the General Assembly, and not to 
the courts of the state. And the power of the Legislature to authorize 
local taxation cannot be judicially denied on the ground that the pur- 
pose for which it is exercised is not local, unless the absence of all 
special local interest is clearly apparent. Walker v. Cincinnati, 21 Ohio 
St., 14. 

This section relates exclusively to cities and villages, *nd can have 


116 


CONSTITUTION OF OHIO, 1851. 


Associa- 
tions with 
banking 
powers. 


Commis- 

sioners. 


Their duties. 


Their re- 
port. 


Seat of gov- 
ernment. 


Public print- 
ing. 


no application to counties or county commissioners. State v. Com. of 
Warren Co., 17 Ohio St., 561. 

1 Debates, 260, 447, 458. 2 Debates, 668, 676, 838, 851, 863, 864, 870. 

Sec. 7. No act of the general assembly, authorizing asso- 
ciations with banking powers, shall take effect until it shall 
be submitted to the people, at the general election next suc- 
ceeding the passage thereof, and be approved by a majority 
of all the electors, voting at such election. 

This section, as well as the second and third, is prospective, and not 
retrospective, in its intent and application. Citizens ’ Bank v. Wright, 6 
Ohio St., 318 ; State v. Roosa, 11 Ohio St., 17. 

1 Debates, 707, 709 ; 2 Debates, 20, 344-346, 392-396, 402-424, 795-803, 
S06, 819, 820, 824, 850, 851, 864, 870. 

ARTICLE XIV. 

JURISPRUDENCE. 

Sec. 1. The general assembly, at its first session after the 
adoption of this constitution, shall provide for the appoint- 
ment of three commissioners, and prescribe their tenure of 
office, compensation, and the mode of filling vacancies in 
said commission. 

1 Debates, 338, 551-554 ; 2 Debates, 331, 838, 864, 870. 

Sec. 2. The said commissioners shall revise, reform, sim- 
plify and abridge the practice, pleading, forms and proceed- 
ings of the courts of record of this state ; and, as far as prac- 
ticable and expedient, shall provide fcr the abolition of the 
distinct forms of action at law, now in use, and for the 
administration of justice by a uniform mode of proceeding, 
without reference to any distinction between law and 
equity. 

1 Debates, 338, 554-577; 2 Debates, 319-321, 324*326, 331, 
838, 864, 870. 

Sec. 3. The proceedings of the commissioners shall, from 
time to time, be reported to the general assembly, and be 
subject to the action of that body. 

1 Debates, 338; 2 Debates, 331, 838, 864, 870. 

ARTICLE XV. 

MISCELLANEOUS. 

Sec. 1. Columbus shall be the seat of government, until 
otherwise directed by law. ( See Const. 1802, Art. VII , § 4.) 

1 Debates, 164, 259; 2 Debates, 318, 568, 633, 664, 854,864, 
870. 

Sec. 2. The printing of the laws, journals, bills, legisla- 
tive documents and papers for each branch of the general 
assembly, with the printing required for the executive and 
other departments of state, shall be let, on contract, to the 














































































■ 










































































































































CONSTITUTION OF OHIO, 1851. 


117 


lowest responsible bidder, by such executive officers, and in 
such manner, as shall be prescribed by law. 

1 Debates, 163, 230: 2 Debates, 318, 560, 582-589, 632, 633, 
664, 854, 864, 870. 

Sec. 3. An accurate and detailed statement of the receipts 
and expenditures of the public money, the several amounts 
paid, to whom, and on what account, shall, from time to 
time, be published, as shall be prescribed by law. 

1 Debates, 163, 237-239; 2 Debates, 151, 318, 564-566, 633, 
664, 854, 864, 870. 

Sec ; 4. No person shall be elected or appointed to any 
office in this state, unless he possess the qualifications of an 
elector. 

See Art. V. 

1 Debates, 163, 258; 2 Debates, 318, 567, 633, 664, 854, 864, 
870. 

Sec. 5. No person who shall hereafter fight a duel, assist 
in the same as second, or send, accept, or knowingly carry, 
a challenge therefor, shall hold any office in this state. 

1 Debates, 164, 260-263 ; 2 Debates, 165, 318, 569, 578, 590, 
633, 664, 854, 864, 870. 

Sec. 6. Lotteries, and the sale of lottery tickets, for any 
purpose whatever, shall forever be prohibted in this state. 

1 Debates, 164, 263; 2 Debates, 318, 569, 633, 664, 854,864, 
870. ’ 

Sec. 7. Every person chosen or appointed to any office 
under this state, before entering upon the discharge of its 
duties, shall take an oath or affirmation, to support the con- 
stitution of the United States, and of this state, and also an 
oath of office. ( See Const. 1802, Art. VII , § 1.) 


All officers should take the oath required by the Constitution, 
whether the law, under which they hold office, prescribe this duty or 
not. The injunctions of the Constitution in this respect are as obliga- 
tory as those of a statute could be. State v. Kennon, 7 Ohio St., 546- 
558 — Brinkerhoff, J. 

1 Debates, 163, 293; 2 Debates, 318, 634, 664, 854, 864, 870. 

Sec. 8. There may be established, in the secretary of 
state’s office, a bureau of statistics, under such regulations 
as may be prescribed by law. 

2 Debates, 293, 755, 7 56, 854, 864, 870. 


ARTICLE XVI. 

AMENDMENTS. 

Sec. 1. Either branch of the general assembly may pro- 
pose amendments to this constitution; and, if the same 
shall be agreed to, by three-fifths of the members elected to 
each house, such proposed amendments shall be entered on 
the journals, with the yeas and nays, and shall be published 
in at least one newspaper in each county of the state, where 
a newspaper is published, for six months preceding the next 
election for senators and representatives, at which time the 


Receipts 
and expen- 
ditures. 


Who eligible 
to office. 


Duelists ine- 
ligible. 


Lotteries. 


Oath of 
officers. 


Bureau of 
statistics. 


This consti- 
tution may 
be amended, 
and how. 


11$ CONSTITUTION OF OHIO, 1851. 

same shall be submitted to the electors, for their approval or 
rejection ; and if a majority of the electors, voting at such 
election, shall adopt such amendments, the same shall be- 
come a part of the constitution. When more than one 
amendment shall be submitted at the same time, they shall 
be so submitted, as to enable the electors to vote on each 
amendment, separately. 

2 Debates, 339, 427, 428, 434, 436, 446, 811, 839, 864, 870. 
Same sub- Sec. 2. Whenever two-thirds of the members elected to 
J ect - each branch of the general assembly, shall think it neces- 

sary to call a convention, to revise, amend, or change this 
constitution, they shall recommend to the electors to vote, 
at the next election of- members to the general assembly, 
for or against a convention; and if a majority of all the 
electors, voting at said election, shall have voted for a con- 
vention, the general assembly shall, at their next session, 
provide, by law, for calling the same. The convention shall 
consist of as many members as the house of representatives, 
who shall be chosen in the same manner, and shall meet 
within three months after their election, for the purpose 
aforesaid. ( See Const. 1802, Art. FI/, § 5.) 

2 Debates, 339, 428, 429, 434, 436, 446, 811, 839, 864, 870. 
Same sub- Sec. 3. At the general election, to be held in the year 
ject. one thousand eight hundred and seventy-one, and in each 

twentieth year thereafter, the question : “Shall there be a 
convention to revise, alter, or amend the constitution,” shall 
be submitted to the electors of the state ; and, in case a ma- 
jority of all the electors, voting at such election, shall decide 
in favor of a convention, the general assembly, at its next 
session, shall provide, by law, for the election of delegates, 
and the assembling of such convention, as is provided in the 
preceding section ; but no amendment of this constitution, 
agreed upon by any convention assembled in pursuance of 
this article, shall take effect, until the same shall have been 
submitted to the electors of the state, and adopted by a 
majority of those voting thereon. 

2 Debates, 339, 429-436, 446, 811, 839, 864, 870. 


SCHEDULE. 

Of prior Section 1. All laws of this state, in force on the first 

laws. day of September, one thousand eight hundred and fifty- 

one, not inconsistent with this constitution, shall continue 
in force, until amended or repealed. ( See Const. 1802, Sched ., 
§ 4.) 

The laws of a conquered country being held to remain in force until 
repealed, so far as they are consistent with the government of the 
conquerors, a fortiori must it be held, that the laws of a state survive a 
peaceable change of its constitution, effected by its own people, and 
not varying the general structure of the government, to the full extent 
to which they are consistent with the new order of things. Cass v. 

• Dillon, 2 Ohio St., 607. 







CONSTITUTION OF OHIO, 1851. 


119 


The new constitution of Ohio created no new state. It only altered, 
in some respects, the fundamental law of a state already in existence ; 
and even this was done pursuant to the prior constitution, under 
whose provisions the convention was called, and the new constitution 
framed. Ib. 

It follows, that all laws in force when the latter took effect, and 
which were not inconsistent with it, would have remained in force 
without an express provision to that effect ; and all inconsistent laws 
fell simply because they were inconsistent ; in other words, all repug- 
nant laws were repealed by implication. Ib. 

The rule, that repeals by implication are not favored, is applicable 
to the inquiry, whether any particular enactment has ceased to be in 
force on account of repugnancy to the new constitution. Ib. ; State v. 
Dudley , 1 Ohio St., 437. 

The repugnancy which must cause the law to fall, must be necessary 
and obvious ; if by any fair course of reasoning, the law and the Con- 
stitution can be reconciled, the law must stand. C. W. & Z. R. R. Co. 
v. Com. of Clinton Co ., 1 Ohio St., 77 ; State v. Dudley, Ib. 437 ; Cass v. 
Dillon, 2 Ohio St., 608 ; Hill v. Higdon , 5 Ohio St., 243 ; Armstrong v. 
Treas. of Athens Co., 10 Ohio, 235 ; Gosliorn v. Purcell, 11 Ohio St., 
653. And see Art. IV, § 1, note 1. 

The English common law, so far as it is reasonable in itself, suitable 
to the condition and business of our people, and consistent with the 
letter and spirit of our federal and state constitutions and statutes, has 
been and is followed by our courts, and may be said to constitute a 
part of the common law of Ohio. But wherever it has been found 
wanting in either # of these requisites, our courts have not hesitated to 
modify it to suit our circumstances, or, if necessary, wholly to depart 
from it. Bloom v. Richards, 2 Ohio St., 387. 

2 Debates, 804, 818, 819, 844, 847, 864, 870. 

Sec. 2. The first election for members of the general as- 
sembly, under this constitution, shall be held on the second 
Tuesday of October, one thousand eight hundred and fifty- 
one. 

2 Debates, 804, 817-819, 844, 847, 864, 870. _ 

Sec. 3. The first election for governor, lieutenant gov- 
ernor, auditor, treasurer, and secretary of state and attorney 
general, shall be held on the second Tuesday of October, one 
thousand eight hundred and fifty-one. The persons, hold- 
ing said offices on the first day of September, one thousand 
eight hundred and fifty-one, shall continue therein, until 
the second Monday of January, one thousand eight hundred 
and fifty-two. 

2 Debates, 804, 817-819, 843, 844, 847, 864, 870. 

Sec. 4. The first election for judges of the supreme court, 
courts of common pleas, and probate courts, and clerks of 
the courts of common pleas, shall be held on the second 
Tuesday of October, one thousand eight hundred and fifty- 
one, and the official term of said judges and clerks, so 
elected, shall commence on the second Monday of February, 
one thousand eight hundred and fifty-two. Judges and 


The first 
election for 
members of 
general 
assembly. 

For state 
officers. 


For judges, 
clerks, etc. 


120 


Wliat offi- 
cers to con- 
tinue in 
office until 
the expira- 
tion of their 
term. 


As to certain 
courts. 


County and 

township 

officers. 


Vacancies. 


When con- 
stitution 
shall take 
effect. 


CONSTITUTION OF OHIO, 1851. 


clerks of the courts of common pleas and supreme court, in 
office on the first day of September, one thousand eight hun- 
dred and fifty-one, shall continue in office with their present 
powers and duties, until the second Monday of February, 
one thousand eight hundred and fifty-two. No suit or pro- 
ceeding, pending in any of the courts of this state, shall be 
affected by the adoption of this constitution. 

See Art . IV, % 7, Note 2 ; § 13, Note. 

2 Debates, 804, 817-819, 844, 847, 864, 870. 

Sec. 5. The register and receiver of the land office, 
directors of the penitentiary, directors of the benevolent in- 
stitutions of the state, the state librarian, and all other offi- 
cers, not otherwise provided for in this constitution, in office 
on the first day of September, one thousand eight hundred 
and fifty-one, shall continue in office, until their terms ex- 
pire, respectively, unless the general assembly shall other- 
wise provide. 

2 Debates, 804, 817-819, 844, 847, 864, 865, 870. 

Sec. 6. The superior and commercial courts of Cincin- 
nati, and the superior court of Cleveland, shall remain, until 
otherwise provided by law, with their present powers and 
jurisdiction; and the judges and clerks of said courts, in 
office on the first day of September, one thousand eight hun- 
dred and fifty-one, shall continue in office, until the expira- 
tion of their terms of office, respectively, or, until otherwise 
provided by law ; but neither of said courts shall continue 
after the second Monday of February, one thousand eight 
hundred and fifty-three ; and no suits shall be commenced 
in said two first mentioned courts, after the .second Monday 
of February, one thousand eight hundred and fifty-two, nor 
in said last mentioned court, after the second Monday in 
August, one thousand eight hundred and fifty-two ; and all 
business in either of said courts, not disposed of within the 
time limited for their continuance as aforesaid, shall be 
transferred to the court of common pleas. 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 

Sec. 7. All county and township officers and justices of 
the peace, in office on the first day of September, one thous- 
and eight hundred and fifty-one, shall continue in office 
until their terms expire, respectively. 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 

Sec. 8. Vacancies in office, occurring after the first day 
of September, one thousand eight hundred and fifty-one, 
shall be filled, as is now prescribed by law, and until officers 
are elected or appointed, and qualified, under this constitu- 
tion. 

2 Debates, 804, 817-819, 844, 847, 865, 870. 

Sec. 9. This constitution shall take effect, on the first 
day of September, one thousand eight hundred and fifty- 
one. 

“ The Constitution must receive the same construction since its rati- 
fication by the people that it would have received when it passed from 
the hands of the Convention. As a necessary result from this princi- 
ple, things as they existed on the tenth of March, when it was adopted 








CONSTITUTION OF OHIO, 1851. 


121 


by the Convention, must control in its construction. In short, the in- 
strument speaks from the tenth of March, although by its own terms, 
its effect was postponed to the first of September, and none the less so 
because the approval of the people was made necessary to its ultimate 
effect. They but ratified and approved an act already done by their 
representatives in convention, and were not, in any correct sense, the 
authors of the act itself.” State v. Dudley, 1 Ohio St., 437-442— Ran- 
ney, J. 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 

Sec. ID. All officers shall continue in office, until their 
successors shall be chosen and qualified. (See Const. 1802, 
Sched. § 3.) 

This section was not intended as a permanent provision of the Con- 
stitution, and as such applicable to officers chosen under it, but was 
limited, in its application, to officers chosen or appointed under the 
old Constitution and whose term of office did not expire, until after 
the taking effect of the new Constitution. State v. Taylor , 15 Ohio 
St., 137. 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 

Sec. 11. Suits pending in the supreme court in bank, 
shall be transferred to the supreme court provided for in 
this constitution, and be proceeded in according to law. 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 

Sec. 12. The district courts shall, in their respective 
counties, be the successors of the present supreme court ; 
and all suits, prosecutions, judgments, records and proceed- 
ings, pending and remaining in said supreme court, in the 
several counties of any district, shall be transferred to the 
respective district courts of such counties, and be proceeded 
in, as though no change had been -made in said supreme 
court. 

2 Debates, 804, 817-819, 844, 847, 865, 870. 

Sec. 13. The said courts of common pleas, shall be the 
successors of the present courts of common pleas in the sev- 
eral counties, except as to probate jurisdiction ; and all suits, 
prosecutions, proceedings, records and judgments, pending 
or being in said last mentioned courts, except as aforesaid, 
shall be transferred to the courts of common pleas created 
by this constitution, and proceeded in, as though the same 
had been therein instituted. % 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 

Sec. 14. The probate courts provided for in this consti- 
tution, as to all matters within the jurisdiction conferred 
upon said courts, shall be the successors, in the several 
counties, of the present courts of common pleas ; and the 
records, files and papers, business and proceedings, apper- 
taining to said jurisdiction, shall be transferred to said 
courts of probate, and be there proceeded in, according to 
law. 

2 Debates, 804, 817-819, 844, 847, 865, 870. 


Term of 
office. 


Transfer of 
suits. 


Same 

subject. 


Same 

subject, 


Same 

subject. 


122 


CONSTITUTION OF OHIO, 1851. 


Judges and 
clerks, how 
elected, etc. 


Election re- 
turns, where 
sent. 


Constitution 
submitted to 
the electors 
of the state, 
etc. 


License to 
traffic in in- 
toxicating 
liquor. 


Sec. 15. Until otherwise provided by law, elections for 
judges and clerks shall be held, and the poll books returned, 
as is provided for governor, and the abstract therefrom, cer- 
tified to the secretary of state, shall be by him opened, in 
the presence of the governor, who shall declare the result, 
and issue commissions to the persons elected. 

2 Debates, 844, 847, 865, 870. 

Sec. 16. Where two or more counties are joined in a sen- 
atorial, representative, or judicial district, the returns of 
elections shall be sent to the county, having the largest 
population. 

2 Debates, 782, 847, 865, 870. 

Sec. 17. The foregoing constitution shall be submitted 
to the electors of the state, at an election to be held on the 
third Tuesday of June, one thousand eight hundred and 
fifty-one, in the several election districts of this state. The 
ballots at such election shall be written or printed as fol- 
lows : Those in favor of the constitution, “New Constitu- 
tion, Yes;” those against the constitution, “New Constitu- 
tion, No.” The polls at said election shall be opened be- 
tween the hours of eight and ten o’clock A. M., and closed 
at six o’clock P. M. ; and the said election shall be conducted, 
and the returns thereof made and certified, to the secretary 
of state, as provided by law for annual elections of state and 
county officers. Within twenty days after such election, 
the secretary of state shall open the returns thereof, in the 
presence of the governor ; and, if it shall appear that a ma- 
jority of all the votes, cast at such election, are in favor of 
the constitution, the governor shall issue his proclamation, 
stating that fact, and said constitution shall be the consti- 
tution of the state of Ohio, and not otherwise. 

The results of this election, excluding the returns of two counties, 
Defiance and Auglaize, which were not received in the twenty days 


specified, were as follows : 

“New Constitution, Yes,” 125,564 

“ New Constitution, No,” 109,276 


Majority for New Constitution 16,288 


2 Debates, 805, 813-815, 819, 824, 844, 847, 848, 865, 870. 

Sec. 18. At the time when the votes of the electors shall 
be taken for the adoption or rejection of this constitution, 
the additional section, in the words following, to wit: “No 
license to traffic in intoxicating liquors shall hereafter be 
granted in this state ; but the general assembly may, by 
law, provide against evils resulting therefrom,” (1) shall be 
separately submitted to the electors for adoption or rejec- 
tion, in form following, to wit : A separate ballot may be 
given by every elector and deposited in a separate box. 
Upon the ballots given for said separate amendment shall 
be written or printed, or partly written and partly printed, 
the words: “License to sell intoxicating liquors, Yes;” and 






CONSTITUTION OF OHIO, 1851. 


123 


upon the ballots given against said amendment, in like man- 
ner, the words: “License to sell intoxicating liquors, No.” 
If, at the said election, a majority of all the votes given 
for and against said amendment, shall contain the words : 
“License to sell intoxicating liquors, No,” then the said 
amendment shall be a separate section of article fifteen of 
the constitution. (2) 

(1) This clause expressly authorized § § 1, 2, 4, 8, of the act of May 
1, 1854 (S. & C., 1431), “to provide against the evils resulting from the 
sale of intoxicating liquors in the State of Ohio.” Miller v. State, 3 


Ohio St., 475. 

(2) This election resulted : 

“License to sell intoxicating liquors, No,” 113,239 

“ License to sell intoxicating liquors, Yes,” 104,255 

Majority for No License 8,984 


2 Debates, 362, 436-461, 694, 695, 711-723, 726, 788, 789, 793, 805, 848, 

865, 870. 

Sec. 19. The apportionment for the house of representa- Apportion- 
tives, during the first decennial period under this constitu- ment for 
tion, shall be as follows : house of rep- 

The counties of Adams, Allen, Athens, Auglaize, Carroll, resentatlves - 
Champaign, Clark, Clinton, Crawford, Darke, Delaware, 

Erie, Fayette, Gallia, Geauga, Greene, Hancock, Harrison, 

Hocking, Holmes, Lake, Lawrence, Logan, Madison, Marion, 

Meigs, Morrow, Perry, Pickaway, Pike, Preble, Sandusky, 

Scioto, Shelby and Union, shall, severally, be entitled to one 
representative, in each session of the decennial period. 

The counties of Franklin, Licking, Montgomery and Stark, 
shall each be entitled to two representatives, in each session 
of the decennial period. 

The counties of Ashland, Coshocton, Highland, Huron, 

Lorain, Mahoning, Medina, Miami, Portage, Seneca, Sum- 
mit and Warren, shall, severally, be entitled to one repre- 
sentative, in each session ; and one additional representa- 
tive, in the fifth session of the decennial period. 

The counties of Ashtabula, Brown, Butler, Clermont, 

Fairfield, Guernsey, Jefferson, Knox, Monroe, Morgan, Rich- 
land, Trumbull, Tuscarawas and Washington, shall, sev- 
erally, be entitled to one representative, in each session ; 
and two additional representatives, one in the third, and 
one in the fourth session of the decennial period. 

The counties of Belmont, Columbiana, Ross and Wayne, 
shall, severally, be entitled to one representative, in each 
session; and three additional representatives, one in the 
first, one in the second, and one in the third session of the 
decennial period. 

The county of Muskingum shall be entitled to two repre- 
sentatives, in each session ; and one additional representa- 
tive, in the fifth session of the decennial period. 

The county of Cuyahoga shall be entitled to two repre- 
sentatives, in each session ; and two additional representa- 


124 


CONSTITUTION OF OHIO, 1851. 


tives, one in the third, and one in the fourth session of the 
decennial period. 

The county of Hamilton shall be entitled to seven repre- 
sentatives, in each session ; and four additional representa- 
tives, one in the first, one in the second, one in the third, 
and one in the fourth session, of the decennial period. 

The following counties, until they shall have acquired a 
sufficient population to entitle them to elect, separately, 
under the fourth section of the eleventh article, shall form 
districts in manner following, to wit : The counties of Jack- 
son and Vinton, one district; the counties of Lucas and Ful- 
ton, one district ; the counties of Wyandot and Hardin, one 
district ; the counties of Mercer and Van Wert, one district ; 
the counties of Paulding, Defiance and Williams, one dis- 
trict ; the counties of Putnam and Henry, one district ; and 
the counties of Wood and Ottawa, one district : each of 
which districts shall be entitled to one representative, in 
every session of the decennial period. 

1 Debates, 460 ; 2 Debates, 7, 708, 782, 783, 822, 823, 848, 
865, 866, 870. 

Done in convention, at Cincinnati, the tenth day of 
March, (1) in the year of our Lord, one thousand eight hun- 
dred and fifty-one, and of the independence of the United 
States, the seventy -fifth. 

(1) See Sched., \ 9, Note. 

WILLIAM MEDILL, President. 


Wm. PI. Gill, Secretary. 


Attest : 

S. J. Andrews, 

William Barbee, 
Joseph Barnett, 

David Barnet, 

Wm. S. Bates, 

A. I. Bennett, 

John H. Blair, 

Jacob Blickensderfer, 
Van Brown, 

R. W. Cahill, 

L. Case, 

David Chambers, 

John Chany, 

H. D. Clark, 

George Collins, 

Friend Cook, 

Otway Curry, 

G. Volney Dorsey, 
Thos. W. Ewart, 

John Ewing, 

Joseph M. Farr, 

Elias Florence, 
Robert Forbes, 

H. N. Gillett, 

John Graham, 


Jacob J. Greene, 

John L. Green, 

Henry H. Gregg, 

W. S. Groesbeck, 

C. S. Hamilton, 

D. D. T. Hard, 

A. Harlan, 

William Hawkins, 
James P. Henderson, 
Peter Hitchcock, 

J. McCormick, 

G. W. Holmes, 

Geo. B Holt, 

John J. Hootman, 

V. B. Horton, 

Samuel Humphreville, 
John E. Hunt, 

B. B. Hunter, 

John Johnson, 

J. Dan. Jones, 

James B. King, 

S. J. Kirkwood, 

Tiios. J. Larsh, 

William Lawrence, 

J ohn Larwill, 



















































I 








♦ 














CONSTITUTION OF OHIO, 1851. 


Robert Leech, 

D. P. Leadbetter, 

John Lidey, 

James Loudon, 

H. S. Manon, 

Samson Mason, 
Matthew H. Mitchell, 
Isaiah Morris, 

Charles McCloud, 

S. F. Norris, 

Chas. J. Orton, 

W. S. C. Otis, ' 

Thomas Patterson, 
Danl. Peck, 

Jacob Perkins, 

Saml. Quigley, 

R. P. Ranney, 

Chs. Reemelin, 

Adam N. Riddle, 
Edward C. Roll, 

Wm. Sawyer, 

Sabirt Scott, 

John Sellers, 

John A. Smith, 

George J. Smith, 

B. P. Smith, 


Henry Stanbery, 

B. Stanton, 

Albert V. Stebbins, 

E. T. Stickney, 
Harman Stidger, 
James Struble, 

J. R. Swan, 

L. Swift, 

James W. Taylor, 
Norton S. Townshend, 
Elijah Vance, 

Wm. M. Warren, 
Thomas A. Way, 

J. Milton Williams, 
Elsey Wilson, 

Jas. T. Worthington, 

E. B. Woodbury, 

H. C. Gray, 

Edward Archbold, 
Reuben Hitchcock, 

F. Case, 

Joseph Vance, 

Rich’d Stillwell, 
Simeon Nash, 

Hugh Thompson, 
Joseph Thompson. 


125 


4 


INDEX TO CONSTITUTION OF OHIO, 1802 


Adjournment — 

of House or Senate 

each house to sit upon its own 

Amendment — 

to laws 

to Constitution 

Appellate J urisdiction — 

Supreme Court 

Apportionment — 

first 

for members of Legislature — 
<< 

u 

made every four years 

in manner prescribed by law.. 


Representatives, how 
Senators, how 


Appropriation — 

of money 

of property 

Armies — 

standing, dangerous 


Arms — 

right to bear 

Arrest — 

members of Legislature exempt 
electors, exempt 


A itTICLES — 

1st, subject of, legislative 

2d, “ executive 

3d, “ judicial 

4th, u elective franchise . . 

5th, il militia officers 

6th, “ civil officers 

7th, “ miscellaneous 

8th, “ bill of rights 

Schedule, subject of, miscellaneous 


Assemble — 

people have right to 

Auditor of State — 

how appointed 

term of office 


Rail — 

excessive, not required 

Bailable — 

who are 

Bill of Rights— 

See Rights 


Art. 

1 

1 


1 

7 


3 


Sched. 

1 

Sched. 

1 

1 

1 

1 

1 

1 


1 

8 

8 


8 

1 

4 


8 

6 

G 

8 

8 

8 


Sec. 

Page. 

15 

7 

8 

6 

16 

7 

5 

17 

2 

12 

7 

32 

2 

5 

7 

32 

6 

6 

2 

5 

2 

5 

6 

0 

2 

. 5 

6 

6 

21 

8 

4 

20 

20 

30 

20 

30 

13 

6 

3 

15 


3-8 


9-11 


11-14 


14-15 


15-16 


16 


16-18 


18-32 


32-33 

19 

30 

2 

16 

2 

16 

13 

25 

12 

25 


18-32 





































. 








> 




INDEX. 


127 


Bills, Legislative — Art. Sec. 

may originate in either house 1 l(i 

may be amended, etc 1 16 

read on three different days, unless 1 17 

signed by presiding officer 1 17 

style of 1 18 

Blood — 

corruption 8 16 

Boundaries of State 7 16 

Bonds — 

of territory, disposition of Sclied. 2 

Census — 

of State, how ascertained 1 2 

■when first taken 1 2 

Chillicothe — 

seat of government, until 7 4 

Citizen — 

who may vote 4 1 

Clerks of Courts — 

how appointed 3 9 

qualifications 3 9 

removal 3 9 

Commissions — 

how issued 2 15 

Common Pleas Courts — 

of what to consist 3 3 

three circuits in State 3 3 

Legislature may increase 3 3 

terms of court 3 10 

jurisdiction — 

civil 3 3 

criminal 3 4 

probate and testamentary 3 5 

certiorari 3 6 

judges — 

a president of each circuit 3 3 

associate 3 3 

how appointed 3 8 

term of office 3 8 

salary 3 8 

hold no other office 3 8 

to appoint clerk 3 9 

conservators of peace 3 7 

Compensation — 

Governor 1 19 

“ 2 6 

other officers - 1 19 

to owner of private property 8 4 

Congress— 

member ineligible to be Governor 2 13 

Conscience— 

rights of 8 3 

Constitution — 

oath to support 7 1 

amendment, how made 7 5 

Contracts — 

obligation of, not to be impaired 8 16 

Convention — 

to amend Constitution 7 5 

Conviction — 

not to corrupt blood 8 16 

nor forfeit estate 8 16 


Page. 

7 

7 

7 

7 


7 


26 

17 

32 


17 


14 


14 

14 

14 


10 


12 

12 

12 

14 

12 

12 

13 

13 

12 

12 

13 

13 

13 

13 

14 
13 


7 

9 

7 

20 


10 


19 


16 

17 


26 


17 


26 

26 


128 


INDEX 


Corporal Punishment — 

no person subject to 

Corruption of Blood — 

no conyiction shall work 

Counsel — 

persons accused of crime may have 
Counties — 

officers of 

u a 

new 

representation therein 

number of associate judges in 

Courts— 

See Common Pleas Courts. 

“ Supreme Courts. 

“ Courts of Probate. 

redress in 

ever open 

each appoiut own clerk 

time of holding 

Crimes — 

capital, when not bailable 

tried, upon indictment 

accused, his privilege 

not twice in jeopardy for same 

nor be transported for 

Debate — 

liberty of protected 

Delinquents— 

not eligible to seat in Legislature.. 

Districts — 

(See Apportionment.) 

for representatives 

judicial — 

state divided into three 

Education — 

poor shall attend schools 

Election — 

who may vote 

1 4 U U 

shall be by ballot 

voters privileged from arrest 

f >rfeiture of franchise 

bribery at 

first election 

for Governor, how contested 

Electors — 

who are 

a << 

privilege 

who may not be 

Embezzlement — 

when disqualifies for office 

Emoluments — 

hereditary never granted 

Estate — 

not forfeited for crime 

Executive Power— 

vested in Governor 

Ex Post Facto Laws — 

shall not be made 


Art. Sec. Page. 

8 21 30 


8 16 26 


8 11 21 


6 1 16 

1 27 8 

7 3 17 

7 3 17 

3 3 12 


8 7 23 

8 7 23 

3 0 14 

3 10 14 


8 12 25 

8 10 24 

8 11 24 

8 11 24 

8 17 30 


1 13 6 


1 28 8 


1 2 5 

3 3 12 


8 25 31 


4 1 14 

4 5 15 

4 2 15 

4 3 15 

4 4 15 

7 2 16 

sched. 6 32 

2 2 '9 


4.1 14 

4 5 15 

4 3 15 

4 4 15 


1 28 8 


8 24 31 


8 16 26 


2 1 9 


8 16 26 


























INDEX. 


129 


\ 


Fines — 

former to enure to state 

excessive not imposed 

Forfeiture of Estate — 

no conviction shall work 

General Assembly — 

consist of senate and house 

members elected by people 

qualifications of members 

representatives chosen annually 

senators chosen biennially 

when session to be held..". 

who ineligible as candidates 

when Governor to convene, 

“ “ adjourn 

defaulter ineligible 

impeachment — 

house sole power of 

senate to try 

to be under oath 

two-thirds to convict 

powers and duties — 
to judge of qualifications of members 

choose their officers 

determine their rules 

compelling attendance 

' expelling members 

to have census taken, when 

may punish members 

to add judge to supreme court 

to keep journals 

enter yeas and nays 

proceedings public 

two-thirds a quorum 

two members may protest 

are privileged from arrest 

adjournment 

U 

bills passing ...... 

laws impairing contracts 

new counties 

may punish contempts 

ex post facto laws 

vacancies, how filled 

Governor — 

elected biennially 

who eligible 

for what period 

who ineligible 

how elected 

election, how contested 

liable to impeachment 

vacancy, how filled 

powers and duties — 

to recommend measures 

grant reprieves 

convene general assembly, when 

fill vacancies in legislature 

adjourn general assembly, when 

keep seal 

see laws executed 

sign grants and commissions 

supreme executive power vested in . . 

use private seal, until 

compensation 

require information 

commander-in-chief of militia 


Art. 

Sec. 

Page. 

Sched. 

2 

32 

. 8 

13 

25 

. 8 

1G 

26 

1 

1 

3 

1 

1 

3 

1 

4 

5 

1 

3 

5 

1 

r> 

5 

1 

25 

8 

1 

26 

8 

. 2 

9 

10 

. 2 

11 

10 

1 

28 

8 

1 

23 

8 

. 1 

23 

8 

1 

23 

8 

1 

23 

8 

. 1 

- 8 

6 

1 

8 

6 

l 

11 

6 

1 

8 

6 

1 

11 

6 

1 

2 

5 

1 

11 

6 

. 3 

2 

12 

1 

9 

6 

1 

9 

6 

. 1 

15 

7 

1 

8 

6 

. 1 

10 

6 

1 

J3 

6 

. 1 

)S 

6 

1 

15 

7 

. 1 

16 

7 

. 8 

16 

26 

. 7 

3 

17 

1 

14 

7 

. 8 

16 

26 

1 

12 

6 

. 2 

3 

9 

. 2 

3 

9 

. 2 

3 

9 

. 2 

13 

10 

. 2 

2 

9 

. 2 

2 

9 

1 

24 

8 

. 2 

12 

10 

. 2 

4 

9 

2 

5 

9 

. 2 

9 

10 

. 1 

12 

6 

. 2 

11 

10 

. 2 

14 

10 

. 2 

7 

9 

. 2 

15 

10 

. 2 

1 

9 

.Sched. 

5 

32 

. 2 

6 

9 

. 2 

7 

9 

. 2 

10 

10 


0 


130 


INDEX 


Government — 

right to alter, etc 

change of, not to effect rights, etc 
frequent recurrence to principles . 

Grants — 

how issued 

Habeas Corpus — 

writ of, not suspended, unless 

Happiness — 

right to pursue and obtain 

Hereditary Honors — 

never granted 

House of Representatives — 

(See General Assembly.) 

Impeachment — 

House has sole power of 

majority must concur in 

to be tried by Senate 

under oath . 

two-thirds to convict 

what officers subject to . 

penalty of 

Imprisonment — 

by Legislature for contempt 

for debt, not allowed, unless 

Indentures — 

no person of age, held under 

Indictments — 

how they shall conclude 

officers liable to 

accused, right to copy 

Insolvent Debtor — 

not imprisoned unless 

Instructions — 

to Representatives by people 

Inviolate — 

jury trial 

private property 

Jeopardy — 

not twice in, for same offense 

Journal — 

in each House to be kept 

to be published 

yeas and nays entered on - 

protest entered on 

Judicial Power — 

vested in Supreme Court 

courts of common pleas 

justices of the peace . 

such others as laws may make 

Jurisdiction — 

of Supreme Court 

a 


of common pleas 

justices of peace regulated by law 

Jury Trial — 

shall be inviolate . 

person accused of crime, right to . . 
in libel cases, judges law and fact. 

Justice— 

administered without delay 


Art. 

Sec. 

Page. 

. 8 

1 

18 


1 

32 

8 

18 

30 

. 2 

15 

10 

.. 8 

12 

25 

. 8 

1 

18 

. 8 

24 

31 


.. 1 

23 

8 

1 

23 

8 

.. 1 

23 

8 


23 

8 

. 1 

' 23 

8 

.. 1 

24 

8 

.. 1 

24 

8 

. 1 

14 

7 

8 

15 

23 

.. ,8 

2 

19 

. 3 

12 

14 

.. 1 

24 

8 

.. 8 

11 

24 

8 

15 

26 

8 

19 

30 

. 8 

8 

23 

. 8 

4 

20 

. 8 

11 

24 

. 1 

9 

6 

. 1 

9 

6 


9 

6 

1 

10 

6 

. 3 

1 

11 


1 

11 

. 3 

1 

11 

3 

1 

11 

.. 3 

2 

12 


4 

12 

.. 3 

3-6 

12, 13 

.. 3 

11 

14 


8 

23 


11 

24 

.. 8 

6 

23 


7 

23 


i 

















































* 
























































— 
























































































































INDEX 


Justices of the Peace — 

number and duties 

term of office 

Judges — 

number of supreme 

common pleas 

jurisdiction 

conservators of peace 

bo w appointed 

term of office 

salaries 

not to bold any other office 

Laws — 

suspension of 

style of 1 

ex post facto, not to be passed 

effect of adoption of Constitution upon 
sanguinary, impolitic 

Legislative Authority — 

where vested 

Libel — 

truth may be given in evidence 

Liberty — 

of speech and press 

right to defend.... 

Life — 

right to enjoy and defend 

Literary Societies — 

incorporation of 

Members of Congress — 

not to be Governor 

Members of Convention — 

names 

Members of General Assembly — 

may protest 

exempt from arrest 

Military — 

subordinate to civil power 

Militia— 

how officers elected 

Governor, commander-in-chief 

Money — 

receipts to be published 

how drawn from treasury 

for public buildings 

New Counties — 

See Counties. 

Oaths — 

to be taken by officers 

what to contain 

Senate to take, in impeachment 

Offenses — 

See Crimes. 

Office — 

no religious test required for 

disqualifications for 

U 

u 

who eligible for county 

Officers— 

of militia, how elected 

county 

oath of 




131 

Art. 

3 

Sec. 

11 

Page. 

14 

3 

11 

14 

3 

2 

12 

3 

3 

12 

3 

4-6 

12 

. 3 

7 

13 

. 3 

8 

13 

. 3 

8 

13 

. 3 

8 

13 

. 3 

8 

13 

. 8 

9 

23 

1 

18 

7 

. 8 

16 

26 

. Sched. 

4 

32 

. 8 

14 

26 

1 

1 

3 

. 8 

6 

23 

. 8 

6 

22 

. 8 

1 

18 

. 8 

1 

18 

. 8 

27 

31 

. 2 

13 

10 

. .. 

-- 

33 

. 1 

10 

6 

. 1 

13 

6 

. 8 

20 

30 

. 5 


15 

. 2 

io 

10 

. 1 

22 

8 

. 1 

21 

8 

. 7 

4 

17 


. 7 

1 

16 


1 

16 

. 1 

23 

8 


. 8 

3 

19 

. 1 

20 

7 

1 

24 

8 

. 1 

28 

8 

. 1 

27 

8 



15 

. 6 

i 

16 

. 7 

l 

16 


132 


INDEX. 


Officers — 

may l>e indicted 

may be impeached 

Governor to require information of 

not affected by Constitution.. * 

State Treasurer and Auditor 

town and township 

appointments not directed, how controlled 
of territory to continue 

Pardons — 

allowed by Governor 

People — 

powers not delegated, remain with 

may change the government 

may assemble to consult 

right to bear arms 

may instruct representatives 

rights protected 

See Rights. 

Penalties — 

proportioned to offense 

Perquisites — 

none allowed to judges 

Poll Tax — 

not levied 

Population — 

See Census. 

Powers — 

not delegated, remain with people 

Press — 

liberty of 

Prior Laws — 

shall continue, except 

Prisoners — 

how treated 

rights — 

to be heard 

to demand nature of charge 

meet witnesses 

have compulsory process for 

speedy public trial 

of trial by jury 

not compelled to testify 

not twice put in jeopardy 

Private Property — 

inviolable 

Privileges — 

of persons 

hereditary, not granted 

Probate Matters— 

jurisdiction in common pleas 

Process — 

stylo of 

Property — 

private, inviolable 

subservient to public use 

to be paid for, when 

right to acquire, etc 

Prosecution — 

carried on in name of State 


Art. 

Sec. 

Page. 

1 

24 

8 

1 

24 

8 

o 

7 

9 

Sched. 

3 

32 

6 

2 

16 

G 

3 

16 

G 

4 

16 

Sched. 

3 

32 

2 

5 

9 

8 

28 

31 

8 

1 

18 

* 8 

19 

30 

i ' 

20 

30 

19 

30 

8 

5 

22 


8 

14 

26 

3 

8 

13 

8 

23 

30 


8 

28 

31 

8 

6 

22 


Sched. 

4 

32 

8 

10 

24 

8 

11 

24 

8 

11 

24 

8 

11 

24 

8 

11 

24 

8 

11 

24 

8 

11 

24 

8 

11 

24 

8 

11 

24 

8 

4 

20 

8 

5 

22 

8 

24 

31 

3 

5 

13 

3 

12 

14 

8 

4 

20 

8 

4 

20 

8 

4 

20 

8 

1 

18 

3 

12 

14 















133 


INDEX. 

/ 


Protest — 

any two members may 

reasons entered on Journal 

Public Buildings — 

no money to be raised for, until 

Public Defaulter — 

ineligible as member of General Assembly.. 
Public Money — 

receipts, etc., bow published 

Public Welfare — 

private property subservient to 

Punishment — 

cruel, not inflicted 

Quorum — 

two-thirds constitute 

Religion and Morality — 

encouraged by Legislature 

Religious Sects — 

tests, none required as qualification for office 

no preference to be given 

no one compelled to maintain 

Reprieves — 

granted by Governor 

Representatives — 

ratio of 

apportionment 

exempt from arrest 

any two may protest 

chosen annually 

v r hen and how 

qualifications 

must have paid tax 

Rights — 

not delegated, remain with people 

Rights of Persons — 

bill of 

of conscience 

to speak, write 

to papers, possession protected 

to worship God.. 

accused of crime 

Safety — 

right to pursue and obtain 

Salaries — 

executive department, how fixed 

judges 

U 

members of legislature 

Schools — 

poor to participate in 

shall be encouraged 

donations to 

Seal of the State — 

kept by the Governor 

Seat of Government — 

Chillicothe, until 

SEARcn Warrants — 

issue on oath 

requisites of 

Searches and Seizures — 

unreasonable not made 


Art. Sec. Page. 
1 10 6 

1 10 6 

7 4 17 

1 28 8 

1 22 8 


8 4 20 


8 13 25 

1 8 6 

8 3 19 

8 3 19 

8 3 19 

8 3 19 

2 5 9 


12 5 

12 5 

1 13 6 

1 10 6 

13 5 

13 5 

14 5 

14 5 


8 28 31 


8 .. 18-32 

8 3 19 

8 6 22 

8 5 22 

8 3 19 

8 11 24 

8 1 18 


1 19 7 

1 19 7 

3 8 13 

1 19 7 . 


8 25 31 

8 3 19 

8 25 31 


2 14 10 


7 4 17 

8 5 22 

8 5 22 

8 5 22 


13d 


INDEX. 


Secretary of State — Art. Sec. Page. 

how elected 2 16 10 

term of office 2 16 10 

duties 2 16 10 

Section 29 — 

disposition of proceeds r. 8 26 31 

Senate — 

impeachments, trial of 1 23 8 

two-thirds must concur 1 23 8 

Senators— 

chosen biennially 15 5 

incompatible offices 1 26 8 

qualifications 1 7 6 

exempt from arrest 1 13 6 

any two may protest 1 10 6 

apportionment of 1 6 6 

defaulters ineligible 1 28 8 

shall have paid tax 1 7 6 

Servitude — 

no involuntary allowed 8 2 18 

no alteration of Constitution in respect to, allowed 7 5 17 

Session of General Assembly — 

when to commence 1 25 8 

Sheriff — 

eligible, how long 6 1 16 

Slavery — 

not allowed 8 2 18 

“ 7 5 17 

no change of Constitution introducing, shall be made 7 5 17 

Soldiers — 

how quartered 8 22 30 

Speakers— 

to sign bills 1 17 7 

Speech — 

liberty of 8 6 22 

members of Legislature not questioned for debate 1 13 7 

Style of Laws 1 18 7 

Supreme Court — 

consist of three judges 3 2 12 

two a quorum 3 2 12 

term ot 3 10 14 

j urisdiction — 

common law and chancery 3 2 12 

criminal 3 4 12 

certiorari 3 6 13 

judges — 

may divide state into circuits 3 2 12 

conservators of peace 3 7 13 

how appointed , 3 8 13 

term of office 3 8 13 

salary 3 8 13 

to appoint clerk 3 9 14 

hold no other office 3 8 13 

Suspending Laws — 

exercised only by Legislature 8 9 23 

Tax — 

representatives shall have paid 1 4 5 

Taxation — 

not laid by the poll 8 23 30 

Town and Township Officers— 

to be chosen annually „ 6 3 . 16 


































INDEX 


135 

Transported — Art. Sec. Page, 

no person to be for crime 8 17 30 

Treasurer of State — 

triennially appointed 6 2 16 

Trial — 

by jury, inviolate 8 8 23 

person accused of crime 8 11 24 

Troops— 

bow quartered 8 22 30 

Vacancies — 

in Legislature, bow filled 1 12 6 

of Governor, bow filled 2 12 10 

wbat Governor to fill 2 8 9 

Voters — 

qualifications 4 1 14 

“ 4 5 15 

privilege from arrest 4 3 15 

Warrants — 

affidavit required 8 5 22 

Worship — 

all may, as conscience dictates 8 3 19 

none compelled to support place of 8 3 19 

Yeas and Nays — 

entered on journal 19 6 


v 


j 


i 


\ 


» 




INDEX TO CONSTITUTION OF OHIO, 1851. 


Actions — 


Adjourn — 


Amendment — 


Appellate Jurisdiction — 


Appointing Power — 


A PPORTIONMENT — 


A PPROPRI ATIONS — 


of property for public use 


Armies — 

standing, dangerous. 
Arms — 


right to bear. 


Arrest — 


Articles — 

1st, subject of Bill of Rights. 


2d, 
3d, 

4 th, 
5th, 
6th, 
7th, 

8 th, 

9 th, 

10 tli, 
1 Jth, 
12th, 
13th, 
14th, 
15th, 
16th, 


Legislative 

Executive 

Judicial 

elective franchise 

education 

public institutions 

public debt and public works. 

militia 

county and township organization 

apportionment 

finance and taxation 

corporations 

jurisprudence 

miscellaneous 

amendments 


Schedule subject miscellaneous. 


Art. 

Sec. 

Page. 

14 

2 

116 

2 

14 

60 

2 

16 

61 

16 

*• 

117, 118 

4 

2 

78 

4 

6 

81 

2 

27 

68 

11 

1 

98 

11 

1 

98 

11 

1 

98 

11 

7 

99 

11 

7 

99 

11 

12 

101 

Sched. 

19 

123 

Sched. 

19 

123 

Sched. 

19 

123 

Sched. 

19 

123 

Sched. 

19 

123 

2 

22 

63 

2 

22 

63 

1 

19 

50 

13 

5 

109 

1 

4 

36 

1 

4 

36 

2 

12 

60 

5 

3 

S9 



34-57 



57-73 



73-77 



77-87 



87-89 



90 



90-91 

. _ 


91-95 

_ _ 


96 

. „ 


97-98 



98-102 



102.106 



106-116 



116 



116, 117 

. . 


117, 118 



118-124 




















































































































































































* 













































































































































































































' 
































* 
























IKDEX. 



137 

Attorney General — 

Art. 

See. 

Page. 

one of executive department 

3 

1 

73 

when elected 


1 

73 

term of office 


2 

73 

term to commence, when 

3 

2 

73 

vacancy, how filled 


18 

76 

one of commissioners of sinking fund 

8 

8 

94 

Auditor of State — 




one of executive department 

3 

1 

73 

when elected 

3 

1 

73 

term of office 

3 

2 

73 

vacancy, how filled 

3 

18 

76 

commissioner of sinking fund 

8 

8 

94 

^ith governor and secretary to fix representation 

1! 

11 

101 

Bail — 




excessive, not required 

1 

9 

42 

Bailable — 




who are 


9 

42 

Banks — 




how taxed 

12 

O 

o 

108 

Banking Powers — 

( 



acts conferring, submitted to people 

13 

7 

116 

Benevolent Institutions — 




directors’ term of office 

Sclied. 

5 

120 

to be fostered by state 


1 

90 

regulated by general assembly 

7 

1 

90 

trustees, how* appointed 

7 

2 

90 

vacancies, how filled 


3 

91 

Bill of Rights 

1 


34-57 

See Rights. 




Bills, Legislative — 




may originate in either house 

2 

15 

61 

may be altered, amended or rejected 

2 

15 

61 

to be read three different days, except 

2 

16 

61 

to contain but one subject 

2 

16 

61 

subject to be clearly expressed in title 

2 

16 

61 

how and when to be sigued 

2 

17 

62 

Blind — 




to be provided for 

7 

1 

90 

Blood — 




not corrupted by crime 

1 

12 

49 

Board of Public Works — 




to be elected by people 

8 

12 

95 

one member annually 

8 

12 

95 

term of office 

8 

12. 

95 

powers, duties and compensation 

8 

13 

95 

Bureau of Statistics — 




may be established 

15 

8 

117 

regulated by law - 

15 

8 

117 

Census of State — 




how ascertained for representation 

11 

1 

98 

Cincinnati Courts — 




continuance of powers and jurisdiction 

Sched. 

6 

120 

business transferred to common pleas 

U 

6 

120 

Citizen — 




/ who is 

5 

1 

87 

w lm l fl Tint _ 

5 l 

), 6 

89 

City or Town— 




not to be divided by new county 

2 

30 

72 

shall nor, become stockholder in corporations, etc 

8 

6 

93 

not to raise money for, nor loan credit to, etc 

8 

6 

93 

how incorporated 

13 

6 

113 

power of taxation, etc., restricted 

13 

6 

113 


138 


INDEX 


Clerks of Courts — Art. Sec. Page. 

one in each county 4 16 85 

how elected 4 16 85 

term of office 4 16 85 

to be clerk of all courts of record in county 4 16 85 

General Assembly may provide clerk for each 4 16 85 

of probate court 4 16 85 

how removed 4 16 86 

election returns, how certified Sched. 15 122 

first election Sched. 4 119 

continuance in office Sched. 4 120 

Cleveland Courts — 

continuance of powers and jurisdiction Sched. 6 120 

business transferred to common pleas Sched. 6 120 

Columbus — 

the seat of government 15 1 116 

Commissioners — 

to reform law, number of 14 1 116 

their duties 14 2 116 

to abolish distinct form of action 14 2 116 

abolish distinction between law and equity 14 2 116 

report to General Assembly 14 3 116 

of counties, their powers 10 7 98 

of the sinking fund 8 8 94 

their duties 8 9 95 

to faithfully apply funds <. 8 10 95 

to report to Governor 8 11 95 

Commissions — 

issued by Governor 3 13 76 

how signed and sealed 3 13 76 

Common Pleas Courts — 

how held , 4 3 79 

in each county 4 3 79 

jurisdiction, fixed by law 4 4 80 

successors to what courts Sched. 6 120 

“ Sched. 13 121 

Commutation — 

allowed by Governor, when 3 11 75 

Compensation — 

extra, not allowed, except 2 29 71 

of members of General Assembly 2 31 72 

of executive officers 3 19 76 

of judges 4 14 84 

of Board of Public Works 8 13 95 

of commissioners of jurisprudence 14 1 116 

Conciliation — 

courts of, may be established 4 19 86 

Congress — 

member of, not to be Governor 3 14 76 

Conscience — 

right of 1 7 40 

C ONSTITUTION — 

oath to support, taken by officers 15 7 117 

not to affect suits pending Sched. 4 120 

when to take effect Sched. 9 120 

submitted to the people Sched. 17 122 

amendment — 

how made 16 .. 117,118 

convention for 16 3 118 

Contested Elections — 

regulated by law 2 21 63 

Contracts— 

not to be impaired by laws 2 28 69 

intention of parties, carried into effect 2 28 69 









INDEX. 139 

Convention — Art. Sec. Page. 

names of members who signed Constitution .. 124 

to amend Ccnstitution, to be voted for 16 3 118 

Corporations — 

no special act for 13 1 106 

how created - 13 2 107 

laws creating, may be altered or repealed 13 2 107 

debts owing by, how secured 13 3 108 

liability of stockholders 13 3 108 

property of, how taxed * 13 4 108 

how right of way appropriated for 13 5 109 

municipal, how formed and regulated 13 6 113 

Counsel — 

persous accused of crime may have 1 10 43 

Counties — 

organization of 10 J 97 • 

shall not become stockholder in corporation, etc 8 6 93 

not to raise money for, loan credit to, etc 8 6 93 

new — 

how attached to districts 11 13 102 

what to contain 2 30 72 

to be voted for 2 30 72 

not to divide city or town 2 30 72 

officers — 

when elected 10 2 97 

term of 10 2 97 

powers 10 7 98 

how removed * 10 6 97 

sheriff or treasurer eligible only 4 years in 6 10 3 97 

Courts — t 

See Common Pleas Courts 4 3 79 

See District Courts 4 5 80 

See Supreme Court 4 2 78 

See Probate Courts 4 7 81 

all shall be open 1 16 50 

redress in 1 16 50 

practice of, to be reformed 14 2 116 

of conciliation, may be established 4 19 86 

of Cincinnati Sched. 6 120 

of Cleveland Sched. 6 120 

in bank, succeeded by Sched. 11 121 

Credit of State — 

w r hen not given 8 4 92 

Crimes — 

capital, when bailable 1 9 42 

none to answer except by indictment, etc 1 10 43 

privileges of accused 1 10 43 

none to be transported for 1 12 49 

Damages— 

for right of way, how ascertained 13 5 109 

for property taken for public use, how ascertained 1 19 50 

Deaf and Dumb — 

to be provided for 7 1 90 

Debate — 

liberty of, protected 2 12 60 

Debt of State — 

what state may contract 8 1,2 91 

money obtained by, how applied 8 1,2 91 

extent of 8 1 91 

what, payable by sinking fund 8 2 91 

faith of state pledged for payment of 8 7 94 

how extinguished 8 10 95 

none to be contracted for internal improvement 12 6 106 


140 


INDEX. 


Delinquents— 

public, ineligible to general assembly 

Directors — 

of peuitentiary, bow elected 

of public institutions continued in office until 

Districts — 

See Apportionment. 

for senators 

for representatives, when made 

for representatives, apportioned 

judicial 

nine common pleas 

each divided into three subdivisions 

each subdivision to have one common pleas judge 

District Court — 

jurisdiction 

liow composed 

successors of supreme court 

how often held 

Divorce — 

not to be granted by Legislature 

Duellist — 

ineligible to office 

Education — 

funds for, not to be diminished 

income from funds, how applied 

common schools, how provided for . . 

no sect to have exclusive part of funds 

Election — 

regulated by law 

n u a 

contested, regulated by law 

by ballot 

for county officers, when held 

township officers, when held 

for members of general assembly, when held 

of executive officers, when held , 

first, for members general assembly 

“ “ executive officers 

“ “ judges and clerks 

to adopt constitution 

concerning license to sell liquor 

returns of — 

for executive officers 

forjudges and clerks 

district, where sent 

Elective Franchise 

who may be excluded from 

Electors — 

who are 

who are not 

privileged from arrest, when 

Embezzlement — 

of public funds disqualifies for office 

Emoluments — 

hereditary, never granted 

Estate — 

not forfeited by crime 

Executive Department — 

of whom to comist 

vacancies how filled 

officers of, to report to Governor 

terms of office 


Art. 

Sec. 

Page. 

. 2 

5 

59 

. 7 

2 

90 

. Sched. 

5 

120 


. 11 

7 

99 

. 11 

1 

98 

. Sched. 

19 

123 

. 11 

12 

10 

. 4 

3 

79 

4 

3 

79 

4 

3 

79 

. 4 

6 

81 

. 4 

5 

80 

. Sched. 

12 

121 

. 4 

5 

80 

o 

32 

73 

. 15 

5 

117 

. 6 

1 

90 

. 6 

1 

90 

. 6 

2 

90 

. 6 

2 

90 

. 10 

1 

97 

. 5 

1 

87 

- . 2 

21 

63 

. 5 

2 

89 

. 10 

2 

97 

. 10 

4 

97 

. 2 

2 

58 

. 3 

1 

73 

. Sched. 

2 

119 

U 

3 

119 

u 

4 

119 

li 

17 

122 

ii 

13 

122 

. 3 3 

!,4 

73 

. Sched. 

15 

122 

U 

1G 

122 

. 5 


87-89 

. 5 

4 

89 

. 5 

1 

87 

5 5 

',6 

89 

5 

3 

89 

. 2 

5 

59 

. 1 

17 

50 

. 1 

12 

49 

. 3 

1 

73 

. 3 

18 

76 

. 3 

20 

77 

. Sched. 

3 

119 




INDEX. 


Executive Department — 

terms of office 

Executive Power — 

supreme, vested in Governor 

Finance and Taxation 

See Taxation. 

what reveuue to he provided 

receipts and expenditures to he published 

Fines — 

excessive, not imposed 

Forms of Actions — 

to be abolished, if 

General Assembly — 

shall consist of a senate and house of representatives 

members — 

elected biennially 

qualifications of 

(< << 

term of office 

privileged from arrest 

compensation 

no perquisites allowed 

first ejection for 

any may protest 

vacancy, how filled 

may be expelled 

majority of, constitutes quorum 

less than a majority may compel attendance 

“ “ “ “ adjourn from day to day 

each house to determine the qualifications of own members.. . 

“ to choose own officers 

‘‘ to determine own rules 

may expel members 

“ to keep a journal 

“ to enter yeas and nays on the passage of every bill. 

proceedings to be public, except 

regular session, to commence when 

not to exercise appointing power, except 

“ pass retroactive laws 

“ “ laws impairing contracts.. 

can make no extra compensation, etc 

shall grant no divorce * 

shall exercise no judicial power, except 

may permit judges to fix time of holding court 

not to authorize counties, etc., to raise money for joint stock 

companies, etc 

to provide for safe keeping of public arms 

to provide for county and township offices 

shall pass no special act of incorporation 

shall provide for appointment of commissioners to reform laws. 

its powers and duties as to adjournment 

term and compensation of officers 

contested elections 

appropriations 

impeachment 

new counties 

sinking fund 

taxation - 

creating corporations 

municipal corporations 

banking powers 

of bill, etc., (see bills) 

Government — 

instituted to protect people 

people may change 

seat of, at Columbus 




141 

Art. 

Sec. 

Page. 

. 3 

2 

73 

3 

5 

74 

12 

-* 

102-106 

12 

4 

106 

15 

3 

117 

1 

9 

42 

14 

2 

116 

o 

1 

57 

2 

2 

58 

2 

5 

59 

2 

3,4 

58 

2 

2 

58 

2 

12 

60 

2 

31 

72 

2 

31 

72 

Sched. 

2 

119 

2 

10 

60 

2 

11 

60 

2 

8 

59 

2 

6 

59 

2 

6 

59 

2 

6 

59 

2 

6 

59 

2 

8 

59 

2 

8 

59 

2 

8 

59 

2 

9 

59 

2 

9 

59 

2 

13 

00 

2 

25 

64 

2 

27 

68 

2 

28 

69 

2 

28 

69 

2 

29 

71 

2 

32 

' 73 

2 

32 

73 

4 

5 

80 

8 

6 

93 

9 

5 

96 

10 

1 

97 

13 

1 

106 

14 

1 

116 

2 

14 

60 

2 

20 

62 

2 

21 

63 

2 

22 

63 

2 23,24 

' 64 

2 

30 

72 

8 

9 

95 

12 

. _ 

102-106 

13 


106-116 

13 

6 

113 

13 

7 

116 

2 15, 16 

61 

1 

2 

36 

1 

2 

36 

15 

1 

116 


142 


INDEX 


Governor— 

when elected . 
one of executi 
term of office 


powers and duties as to — 


execution of laws 


seal of state 


proclamation, as to result of election on adoption of Consti- 
tution 

legislature — 


recommending measures to. 
militia — 

commander-in-chief 


commissioning 

calling out 

commissions — 


officers. 


of militia officers. 


Grants — 


Habeas Corpus— 

writ of, not suspended, unless. 

Hamilton County — 


Hereditary Honors — 

never granted 

House of Representatives — 
how organized 

Idiots — 

shall not he electors 

Immunities — 

repealable 

6i 

Impeachment — 


Art. 

Sec. 

Page. 

. 3 

1 

73 

. 3 

1 

73 

. 3 

2 

73 

. 3 

14 

76 

. 3 

15, 17 

76 

. 3 

18 

76 

. 7 

3 

91 

. 7 

2 

90 

. 3 

11 

75 

. 3 

11 

75 

3 

6 

74 

. 3 

6 

74 

. 7 

3 

91 

7 

2 

90 

. 11 

11 

101 

3 

12 

75 

8 

9, 11 

95 

Sched. 

17 

122 

3 

8 

74 

3 

9 

74 

. 3 

11 

75 

3 

7 

74 

3 

20 

77 

3 

20 

77 

3 

11 

75 

3 

7 

74 

3 

10 

75 

9 

3 

96 

9 

4 

96 

9 

4 

96 

3 

13 

76 

9 

4 

96 

Sched. 

15 

122 

Sched. 

15 

122 

3 

13 

76 

3 

13 

76 

3 

13 

76 

1 , 

8 

41 

11 

12 

101 

11 

12 

101 

11 

7 

99 

11 

7 

99 

Sched. 

19 

124 

Sched. 

19 

124 

1 

17 

50 

2 

7 

59 

5 

6 

89 

1 

2 

36 

13 

2 

107 

2 

24 

64 

2 

24 

64 

2 

23 

64 




















» 


. 





























4 — 




















































INDEX, 


143 


Impeachment — 

tried by Senate 

two-thirds to convict 

effect of judgment 

not a bar to proceedings at law 

Imprisonment — 

for debt, not allowed unless 

Improvement — 

public, State not to contract debt for 

Indictments — 

necessary to prosecution 

bow they shall conclude 

officers liable to 

Internal Improvements — 

State not to contract debt tor 

Institutions — 

See Public Institutions. 

Instructions — 

to representatives may be given 

Jeopardy — 

none to be twice in, for same offense 

Journal — 

of each Honse — 

to be kept 

. to be published 

yeas and nays to be entered on 

protest, etc., of member to be entered on, etc 

proposed amendment to Constitution to be entered on 
Judges — 

first election for, when held 

continuance in office 

election returns, bow made 

number, bow increased 

office, not to be vacated 

bow removed 

jurisdiction at chambers 

compensation 

not to bold other office - 

shall receive no fees or perquisites 

vacancy, bow filled 

votes for, when void 

not provided for in Constitution, bow elected 

term of office 

of the Supreme Court — 

their number 

quorum 

bow elected 

their term of office 

bow classified 

common pleas — 

bow elected 

shall reside in district 

term of office 

probate judge — 

how elected 

term of office 

compensation 

Judicial Districts— 

designated 

bow changed 

election returns, where sent 

Judicial Power — 

where vested 

not to be exercised by General Assembly, except 


Art. 

Sec. 

Page. 

2 

23 

64 

2 

23 

64 

2 

24 

64 

2 

24 

64 

1 

15 

50 

12 

6 

106 

1 

10 

43 

4 

20 

67 

2 

24 

64 

12 

6 

106 


1 

3 

36 

1 

10 

43 


2 

9 

59 

2 

9 

59 

2 

9 

59 

2 

10 

60 

16 

1 

117 

Scbed. 

4 

119 

U 

4 

119 

U 

15 

122 

4 

15 

85 

4 

15 

85 

4 

17 

86 

4 

18 

86 

4 

14 

84 

4 

14 

84 

4 

14 

84 

4 

13 

83 

4 

14 

84 

4 

10 

83 

4 

10 

83 

4 

2 

78 

4 

2 

78 

4 

2 

78 

4 

11 

83 

4 

11 

83 

4 

3 

79 

4 

12 

•83 

4 

12 

83 

4 

7 

81 

4 

7 

81 

4 

7 

81 

. 11 

12 

101 

4 

15 

85 

Sched. 

16 

122 

. 4 

1 

77 

. 2 

32 

73 


114 


INDEX 


Jurisdiction— 

of Supreme Court 

of district court 

of common pleas 

of probate court 

of justices of the peace 

of courts of conciliation 

at chambers 

J URISPRUDENCE — 

commissioners appointed to reform practice 

See Commissioners. 

Jury — 

trial by, inviolate 

to consist of twelve men 

Jury Trial — 

shall be inviolate 

right of accused to 

right of owner of property taken for public use to... 
right of owner of property taken for corporation, to . 

J ustice — 

administered without delay 

Justices of the Peace — 

number and election 

term of office 

U 4 4 

powers and duties 

how removed 

when elected 

Knowledge — 

essential to good government 

Land Office— 

register and receiver of, to continue, until 

Law and Equity — 

distinction between to be abolished 

Laws — 

how suspended 

by whom to be passed 

how revised or amended 

style of 

of a general nature with uniform operation 

levying a tax shall state its object 

to be published 

retroactive, not to be passed 

impairing contracts not to be passed 

subject to approval of General Assembly only, except 
conferring banking powers, how approved 

corporations to be created by general 

(( u 

no special, creating corporations to be passed 

in force, to continue 

Legislature — 

See General Assembly. 

Li eel — 

in criminal cases, truth may be given in evidence 

Liberty — 

right of enjoying and defending 

of speech and press 

Librarian — 

State, to continue in office 

License — 

to sell liquor, submitted to people 

if voted against, to be section in Art. XV 


Art. 

Sec. 

Page. 

. 4 

2 

78 

4 

6 

81 

. 4 

4 

80 

. 4 

8 

82 

. 4 

9 

82 

4 

19 

86 

. 4 

18 

86 

14 

1 

116 


1 

5 

37 

. 13 

5 

109 

. 1 

5 

37 

. 1 

10 

43 

1 

19 

50 

. 13 

5 

109 

. 1 

16 

50 

4 

9 

82 

. 4 

9 

82 

. 10 

4 

96 

. 4 

9 

82 

. 10 

6 

97 

. 10 

4 

97 

1 

7 

40 

. Sched/ 

5 

120 

. 14 

o 

116 

l 

18 

50 

2 

9 

59 

2 

16 

61 

2 

18 

62 

. 2 

26 

64 

12 

5 

106 

. 15 

2 

116 

. 2 

28 

69 

. 2 

28 

69 

2 

26 

64 

13 

7 

116 

13 

2 

107 

13 

6 

113 

13 

1 

106 

Sched. 

1 

118 


1 

11 

48 

1 

1 

34 

1 

11 

48 

Sched. 

5 

120 

Sched. 

18 

122 

Sched. 

18 

123 


INDEX. 


Lieutenant Governor — 

when elected 

term of office 

one of executive department . 
to act as Governor, when.. .. 

to be President of Senate 

shall only vote when a tie ... 
vacancy, how filled 


Art. Sec, 
3 1 

3 2 

3 1 

3 15 

3 16 

3 18 

3 16,17 


Liquor — 

license to sell Sched. 18 

assembly may provido against evils resulting from traffic in.. Sched. 18 
Lotteries — 

forever prohibited 15 6 

sale of tickets of, prohibited 15 6 

Majority — 

of Members in each house a quorum 2 6 

of all, necessary to pass a law 2 9 


Members of Congress — 
not to be governor . 


3 14 


Members of General Assembly — 

exempt from arrest 

salaries of 

may protest 

elected biennially 

qualifications of 

- U 

> 

vacancy, how filled 

may he expelled 

majority constitute a quorum . 


2 * 12 
2 3L 

2 10 

? 2 

2 3, 4 

2 5 

2 11 

2 8 

2 6 


MlLI I ARY — 

subordinate to civil power 1 4 

Militia — 

w ho 'enrolled in 9 1 

officers of — 

what and how elected 9 2 

what and how appointed 9 3 

how commissioned 9 4 

their duties 9 4 

governor, coinmander-in-chief 3 10 ' 

Miscellaneous Items Sched. .. 

“ “ 15 

Money — 

how drawn from state treasury 2 22 

‘‘ county or township treasury 10 5 

money arising from state debt, how applied 8 1, 2 


Morality — 

essential to good government 


1 7 


Names — 

of delegates who signed constitution 


New Counties — 
See Counties. 


Nominations— 

by governor, entered on journals 

question on, how taken 

Oaths — 

not dispensed with 

to be taken by officers 

what to contain 

Offenses — 

See Crimes. 

Office — 

none holding, eligible to legislature 

no religious test required for 

10 


7 2 
7 2 

1 7 
15 7 
15 7 


145 


Page. 

73 

73 

73 

76 

76 

76 

76 


122 

122 


117 

117 


59 

59 


76 


60 

72 

60 

58 

58 

59 

60 
59 
59 


36 


96 

96 

96 

96 

96 
75 

118-124 
116, 117 

63 

97 
91 


40 


124 


90 

90 

40 

117 

117 


58 

40 


INDEX. 


( 

14(i 


Office — 

wliat disqualifies for 

<> ii 

u u 

<( <( 

u u 

(« u 

Officers— 

each house to choose its own 

presiding, of each house to sign bills 

compensation of 

may be impeached 

appointment of, how made 

not to have extra compensation 

of militia, how elected 

of militia to appointjstaff 

of county and township, how removed 

“ “ powers of 

“ “ how elected 

“ when elected 

“ term of office 

of township, when elected 

“ term of office 

to take an oath 

must be electors 

continuance in office 

V u u 

vacancies, how filled 

may be indicted 

certain, to report to governor 

Offices — 

what ones members of general assembly ineligible to 

what not held by governor 

what not held by members of assembly 

election and appointment to 

term of, fixed by law 

Pardons — 

granted by governor 

reported to assembly 

Penalty — 

of conviction on impeachment 

Peniten tiar y — 

officers of, how elected 

officers, continued until 

People — 

may change government 

may assemble to consult 

may assemble to instruct representatives 

may petition 

may bear arms 

rights protected 

rights retained 

political power in 

See Bights. 

Perquisites — 

none allowed to members of assembly 

none allowed to judges 

Poll Tax — 

not for county or state purposes 

Population — 

See Census. 

ratio of for representation * 

U U 

it U 

“ senators 

' increase of, how apportioned 


Art. 

Sec. 

Page 

. 5 

4 

89 

.. 15 

4 

117 

. 2 

4 

58 

.. 2 

5 

59 

o 

19 

62 

2 

24 

64 

. 2 

8 

59 

. 2. 

17 

62 

. 2 

20 

62 

. 2 

24 

64 

o 

27 

68 

. 2 

29 

71 

. 9 

2, 3 

96 

. 9 

3 

96 

. 10 

G 

97 

. 10 

7 

98 

. 10 

l 

97 

. 10 

2 

97 

. 10 

2 

97 

. 10 

4 

97 

. 10 

4 

97 

. 15 

7 

117 

15 

4 

117 

.Sched. 

5,7 

10 

120 

. Sched. 

121 

. Sched. 

8 

120 

. 2 

24 

64 

. a 

20 

77 

. 2 

19 

62 

. a 

14 

76 

. 2 

4 

58 

. 2 

27 

68 

. 2 

20 

62 

. a 

11 

75 

. a 

11 

75 

. 2 

24 

64 

. 7 

2 

90 

-Sched. 

5 

120 

1 

2 

36 

. 1 

3 

36 

1 

3 

36 

. 1 

3 

36 


4 

36 

1 

14 

49 

. 1 

20 

56 

1 

2 

36 

. 2 

31 

72 

. 4 

14 

84 

. 12 

. 1 

102 



1,2, 

98 


3,4,5, 

99 


10 

100 


6 

99 


9 

100 


INDEX. 


147 


Postage — 

how ascertained 

not allowed to members of assembly 

Powers — 

not delegated, remain with people 

legislative, where vested 

executive, where vested 

it 4< 

judicial, where vested 

President of Senate — 

to open and publish election returns 

lieutenant governor shall be 

pro tern, when chosen 

Press — 

liberty of protected 

Printing — 

of laws, etc 

Private Property — S ee Property. 

inviolate 

subservient to public welfare 

when taken, how paid for 

when taken by corporation, how paid for 

Privileges — 

hereditary not granted 

of persons, protected 

Probate Court — 

to be established in each county 

a court of record 

open at all times 

jurisdiction 

judge of. 

clerk 

successor of common pleas as to probate business. 

Process — 

Style of. 

Property — 

how taxed 

what exempt 

of banks, how taxed 

of corporations, how taxed 

private, inviolate 

subservient to public use 

how taken for public use 

how taken for use of corporation 

Prosecution — 

how carried on 

Protest — 

any member may 

entered on journal 

Public Arms — 

assembly shall provide for safe-keeping 

Public Debt — 

See Debt of State. 

Public Works — 

See Board of Public Works. 

Public Improvements — 

state not create a debt for 

Public Institutions— 

officers of, to report to governor 

“ how appointed 

to continue in office until 

vacancies, how filled 

for insane, etc., to be fostered 


Art. 

Sec. 

Page. 

. 11 

1 

98 

2 

31 

72 

. 1 

20 

56 

. 2 

1 

57 

. 3 

1 

73 

. 3 

5 

74 

. 4 

1 

77 

. 3 

3 

73 

. 3 

16 

76 

3 

16 

76 

1 

11 

00 

. 15 

2 

116 

i 

19 

50 

L 

19 

50 

. 1 

19 

50 

13 

5 

109 

1 

17 

50 

. 1 

14 

49 

. 4 

7 

81 

. 4 

7 

81 

. 4 

7 

81 

4 

8 . 

82 

. 4 

7 

81 

. 4 

16 

85 

. Sched. 

14 

121 

. 4 

20 

87 

. 12 

2 

103 

. 12 

2 

ffi3 

. 7 12 

3 

105 

. 13 

4 

106 

1 

19 

50 

1 

19 

50 

1 

19 

- 50 

. 13 

5 

109 

4 

20 

87 

. 2 

10 

60 

. 2 

10 

60 

. 9 

5 

96 


12 

6 

106 

3 

20 

77 

7 

2 

90 

Sched. 

5 

120 

.• 7 

3 

9i 

7 

1 

90 


148 


INDEX 


Punishment — 

cruel not to be inflicted 

Quorum — 

majority of members elected to constitute, 
of supreme court 

Receiver op Land Office — 

continued in office until 

Receipts and Expenditures — 

statement of to be published 

Register of Land Office — 

continued in office until 

Religion and Morality — 

essential to good government 

all denominations of, protected 

funds for, to be preserved 

Religious Sects — 

none to have exclusive right to school fund 
all to be protected 

Religious Tests — 

none required as qualification for office 

or as a qualification as a witness 

Religious Society — 

none preferred 

Repealed Laws 

Reprieves — 

allowed by Governor 

Representation — 

See Apportionment. 

Representative — 

See General Assmbhj. 

Revenue — 

what to be raised 

Rights — 

inalienable 

not delegated, retained by people 

of persons — 

bill of 

to speak, write, etc 

to papers, etc., protected 

to worship God 

accused of crime 

Right of Way — 

how appropriated 

Salary — 

not changed 

of members of legislature 

of executive officers 

of judges 

of officers not provided for 

Schools— 

funds to be kept inviolate 

common, to be provided for 

to be encouraged 

Seal of the State — 

kept by Governor 

Searches — 

unreasonable, not made 

Search Warrants — 

how issued 

requisites 


Art. 

1 

Sec. 

9 

Page. 

42 

. 2 

6 

59 

4 

2 

78 

Sched. 

5 

120 

. 15 

3 

/ 

117 

Sched. 

5 

120 

1 

es 

i 

40 

1 

7 

40 

(5 

1 

90 

6 

2 

90 

1 

7 

40 

1 

7 

40 

1 

7 

40 

1 

7 

40 

o 

16 

61 

. 3 

11 

75 


12 

4 

106 

1 

1 

34 

1 

29 

57 

1 


34-57 

1 

11 

48 

1 

14 

49 

J 

7 

40 

1 

10 

43 

13 

5 

109 

2 

20 

62 

2 

31 

72 

3 

19 

76 

4 

14 

84 

2 

20 

62 

6 

1 

90 

r 6 

2 

90 

1 

7 

40 

3 

12 

75 

1 

14 

49 

1 

14 

49 

1 

14 

49 


INDEX. 


Secretary of State — Art- 

one of executive department 3 

liow elected 3 

term of office 3 

vacancy, how filled 3 

commissioner of sinking fund 8 

with Governor, etc , to fix representation 11 

open election returns Sched. 15, 

Senate — 

appointments confirmed by 7 

to try impeachment 2 

two-thirds must concur 2 

on oath 2 


Senators and Representatives — 
(See General Assembly ) 

Senatorial District — 


ratio for, how fixed 11 

state divided into 33 11 

each district one Senator II 

first district three \1 1 

fractions apportioned for Senators 11 

increase apportioned for Senators. 11 

territory to remain ten years 11 

election returns, where sent Sched. 

Senators of U. S.— 

to be voted for viva voce . 2 

Session of General Assembly — 

biennial 2 

when to commence 2 

first session 2 

Servitude — 

no involuntary, unless 1 

Sheriff — 

eligible only four years in six 10 

how and when elected 10 

term of office 10 

how removed 10 

Sinking Fund — 

how created 8 

sufficient for what purposes 8 

commissioners of 8 

how applied 8 

Slavery — 

none in this state 1 

Soldiers — 

how quartered 1 

Speaker — 

of house, shall sign bills 2 

when to act as governor 3 

Speech — 

liberty of protected 1 

“ “ to members of assembly 2 

State — 

shall never assume debt of any county, etc., unless 8 

faith of pledged to payment of debt 8 

credit of not given to any corporation, etc 8 

shall not become a stockholder 8 

shall not contract debts for internal improvement 12 

See Debt of State. 

Statistics — 

bureau of, to be established 15 



149 

Sec. 

Page. 

1 

73 

1 

73 

2 

73 

18 

76 

8 

94 

11 

101 

17 

122 

2 

90 

23 

64 

23 

64 

23 

64 


6 

99 

7 

99 

7 

99 

7 

99 

8 

ion 

9 

100 

10 

100 

16 

122 

27 

68 

25 

64 

25 

64 

25 

64 

6 

40 

3 

97 

2 

97 

2 

97 

6 

97 

7 

94 

7 

94 

8 

94 

10 

95 

6 

40 

13 

49 

17 

62 

17 

76 

11 

48 

12 

60 

5 

93 

7 

94 

4 

92 

4 

92 

6 

106 

8 

117 


150 


INDEX. 


Stockholder— 

liability of .. 

Stock in Corporations — 

State, county, etc., not to own 

Style of Laws 

Suits— 

not affected by Constitution 

pending in court in bank, where transferred 

in common pleas, where 

in Supreme court, where 

in Cincinnati courts, where 

in Cleveland courts, where 

Supreme Court — 

how constituted 

quorum of 

jurisdiction 

terms . 

suits in old, transferred to district courts ... 

Suspending Laws — 

sole power in General Assembly 

Taxation — 

by the poll, not for county or Slate purposes 

by uniform rule 

of all property 

exemptions from 

of banks 

of property of corporations 

Taxes — 

levied by uniform rule ; 

what property subject to 

“ exempt from 

only levied by law - 

Town or City — 

See City. 

Township Organization — 
officers — 

when elected 

term 

how removed . 

power of trustees 

shall not become stockholder 

shall not raise money for corporations, etc... 
Transported — 

no person to be, for crime 

Treasurer of County — 

eligible only four years in six 

Treasurer of State — 

one of executive department 

how and when elected 

term of office 

vacancy, how filled 

Trial by Jury — 

see Jury Trial. 

Trustees of Public Institutions — 

how appointed 

shall continue in office until 

Vacancies — 

in General Assembly, how filled 

in office, how filled 

in executive office, how fdled 

in judicial office, how filled 

in office of public institutions, how filled 


Art. 

Sec. 

Page. 

... 13 

3 

108 

. .. 8 

4 

92 

... 2 

18. 

62 


4 

120 


11 

121 

..Sched. 

13 

121 

. . Sched. 

Al 

121 

. . . Sched. 

6 

120 

. . Sched. 

6 

120 

4 

2 

78 

... 4 

2 

78 

4 

2 

78 

... 4 

2 

78 

..Sched. 

12 

121 

1 

18 

50 

.. 12 

1 

102 

12 

2 

103 

.. 12 

2 

103 

.. 12 

2 

103 

. . 12 

3 

103 

.. 13 

4 

108 

. . 12 

2 

103 

.. 12 

2 

103 

.. 12 

2 

103 


5 

106 


. . 10 4 97 

.. 10 4 97 

..10 0 97 

.. 10 7 98 

..8 6 93 

. . 8 6 93 

l 12 49 


10 3 97 


3 1 73 

3 1 73 

3 2 73 

3 18 76 


7 2 90 

Seked. 5 120 


2 11 60 

2 27 68 

3 18 76 

4 13 83 

7 3 91 


INDEX. 


151 


Vote — 

for U. S. Senators, how taken 

Voters — 

see Electors. 

Voting — 

who may be excluded from 

Warrants — 

see Search Warrants. 

Witness — 

none incompetent on account of religious belief 
right of. accused to meet face to face 

Worship— 

all persons may as conscience dictates „ 

none compelled to support 

Yeas and Nays — 

to be entered on journal . i 

taken on appointments to office 

on amendments to Constitution 


Art. Art. Page. 

2 27 68 


4 89 


17 40 

1 10 43 


17 40 

l 7 40 


2 9 59 

7 2 90 

16 1 117 













































I 































































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